Florida Supreme Court & Foreclosure Fraud

3/8/2011 FindACase™ | In re Amendments to th…
Legal Services of Greater Miami, the Florida Justice Institute and Florida Legal Services, Inc; the Housing and Consumer Umbrella
Groups of Florida Legal Services; Legal Services of North Florida, Inc., and North Florida Center for Equal Justice, Inc.; the Florida
Bankers Association; Florida Default Law Group; Ben-Ezra & Katz, P.A; Thomas H. Bateman III and Janet E. Ferris; Henry P. Trawick,
Jr.; and Lisa Epstein. Oral argument was heard in this matter on November 4, 2009. Upon consideration of the Task Force's petition,
the comments filed and responses thereto, and the presentations of the parties at oral argument, we adopt the Task Force's
proposals with minor modifications as discussed below.
First, rule 1.110(b) is amended to require verification of mortgage foreclosure complaints involving residential real property. The
primary purposes of this amendment are (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.
Next, the Task Force proposed a new form Affidavit of Diligent Search and Inquiry. In its petition, the Task Force explained that
many foreclosure cases are served by publication. The new form is meant to help standardize affidavits of diligent search and
inquiry and provide information to the court regarding the methods used to attempt to locate and serve the defendant. We adopt
this form as new form 1.924, with several modifications.
The form, as proposed by the Task Force, provides spaces for the affiant to check off, from a list, the various actions taken to
discover the current residence of the defendant and provides a ―catch-all‖ section where the affiant can ―List all additional efforts
made to locate defendant.‖ Additionally, it provides a section where the affiant can describe ―Attempts to Serve Process and
Results.‖ One comment to this form, voiced by several interested parties, was that the form should be signed by the person actually
performing the diligent search and inquiry, likely a process server, and not the plaintiff as the form, as originally proposed, provided.
The Task Force agreed with this comment. Thus, we modify the form to incorporate this change.
Next, although the Task Force stated in its petition that a significant provision of the new form was the ―additional criteria [sic] that
if the process server serves an occupant in the property, he inquires of that occupant whether he knows the location of the
borrower-defendant,‖ the proposed form does not include this provision. The Honorable Thomas McGrady, Chief Judge of the Sixth
Judicial Circuit, raised this point in his comment and suggested the following provision be added to the form: ―I inquired of the
occupant of the premises whether the occupant knows the location of the borrower-defendant, with the following results:
________.‖ Again, the Task Force agreed with this suggestion, and we modify the form to incorporate it.
Finally, section 49.041, Florida Statutes (2009), sets forth the minimum requirements for an affidavit of diligent search and inquiry
and states as follows:
The sworn statement of the plaintiff, his or her agent or attorney, for service of process by publication against a natural person,
shall show:
(1) That diligent search and inquiry have been made to discover the name and residence of such person, and that the same is set
forth in said sworn statement as particularly as is known to the affiant; and
(2) Whether such person is over or under the age of 18 years, if his or her age is known, or that the person's age is unknown; and
(3) In addition to the above, that the residence of such person is, either:
(a) Unknown to the affiant; or
(b) In some state or country other than this state, stating said residence if known; or
(c) In the state, but that he or she has been absent from the state for more than 60 days next preceding the making of the sworn
statement, or conceals himself or herself so that process cannot be personally served, and that affiant believes that there is no
person in the state upon whom service of process would bind said absent or concealed defendant.
§ 49.041, Fla. Stat. (2009). The form as proposed by the Task Force contains the required information, except for a statement
whether the person is over or under the age of eighteen or that the person's age is unknown. Thus, we modify the affidavit form to
include this information.
Finally, we adopt the Task Force's proposed Motion to Cancel and Reschedule Foreclosure Sale as new form 1.996(b). The Task
Force recommended adoption of this new form in which the plaintiff would provide the court with an explanation of why the
foreclosure sale needs to be cancelled and request that the court reschedule the sale. As the reason for this proposal, the Task
Force stated in its petition:
Currently, many foreclosure sales set by the final judgment and handled by the clerks of court are the subject of vague last-minute
motions to reset sales without giving any specific information as to why the sale is being reset. It is important to know why sales
are being reset so as to determine when they can properly be reset, or whether the sales process is being abused. . . . Again, this
is designed at promoting effective case management and keeping properties out of extended limbo between final judgment and
sale.
We adopt this form with minor stylistic and grammatical modifications as suggested in the comments and agreed to by the Task
Force.
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In re Amendments to the Florida Rules of Civil Procedure
Supreme Court of Florida
Docket Number available at www.versuslaw.com

Citation Number available at www.versuslaw.com
February 11, 2010
IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE.

IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE - FORM 1.996 (FINAL JUDGMENT OF FORECLOSURE).
Two Cases: Original Proceeding -- Florida Rules of Civil Procedure
Mark A. Romance, Chair, Civil Procedure Rules Committee, Miami, Florida; Jennifer D. Bailey, Chair, Task Force on Residential
Mortgage Foreclosure Cases, Eleventh Judicial Circuit, Miami, Florida and Alan B. Bookman, Task Force on Residential Mortgage
Foreclosures, Pensacola, Florida; John F. Harkness, Jr., Executive Director, and Madelon Horwich, Bar Staff Liaison, The Florida Bar,
Tallahassee, Florida, for Petitioners.
Henry P. Trawick, Jr., Sarasota, Florida; Virginia Townes of Akerman, Senterfitt, Orlando, Florida on behalf of The Florida Bankers
Association; Marc A. Ben-Ezra of Ben-Ezra and Katz, P.A., Fort Lauderdale, Florida; Carolina A. Lombardi, Marcia K. Cypen, and John
W. McLuskey, Legal Services of Greater Miami, Inc., Miami, Florida, Kendall Coffey and Jeffrey B. Crockett of Coffey Burlington, Llp,
Miami, Florida, Randall C. Berg, Jr. and Joshua A. Glickman, Florida Justice Institute, Inc., Miami, Florida, and Kent R. Spuhler, Florida
Legal Services, Inc., Tallahassee, Florida; B. Elaine New, Court Counsel, on behalf of J. Thomas McGrady, Chief Judge, Sixth Judicial
Circuit, St. Petersburg, Florida; Alice M. Vickers, Florida Legal Services, Inc., Tallahassee, Florida, Lynn Drysdale, Jacksonville Area
Legal Aid, Inc., Jacksonville, Florida, Jeffrey Hearne, Legal Services of Greater Miami, Inc., Miami, Florida, and James R. Carr, Florida
Rural Legal Services, Inc., Lakeland, Florida, on behalf of the Housing Umbrella Group and the Consumer Umbrella Group of Florida
Legal Services, Inc.; Scott Manion, Tallahassee, Florida, on behalf of Legal Services of North Florida, Inc.; Ed ward J. Grunewald,
Tallahassee, Florida, on behalf of The North Florida Center for Equal Justice, Inc.; Thomas H. Bateman, III of Messer, Caparello, and
Self, P.A., Tallahassee, Florida, and Janet E. Ferris, Tallahassee, Florida; Ronald R. Wolfe, Tampa, Florida, on behalf of Florida Default
Law Group, P.L.; Judge William D. Palmer, Chair, Committee on Adr Rules and Policy, Fifth District Court of Appeal, Daytona Beach,
Florida, on behalf of the Supreme Court Committee on Alternative Dispute Resolution Rules and Policy; Lisa Epstein, West Palm
Beach, Florida, Responding with comments.
Per curiam.
Rehearing petition filed: 02/26/2010; Rehearing denied In Light of the Revised Opinion: 06/03/2010
In case number SC09-1460, the Task Force on Residential Mortgage Foreclosure Cases has proposed an amendment to Florida Rule
of Civil Procedure 1.110 (General Rules of Pleading) and two new Forms for Use with Rules of Civil Procedure. In case number SC09-
1579, the Civil Procedure Rules Committee has proposed amendments to form 1.996 (Final Judgment of Foreclosure) of the Forms
for Use with Rules of Civil Procedure. We have consolidated these cases for the purposes of this opinion. We have jurisdiction. See
art. V, § 2(a), Fla. Const.
Case No. SC09-1460
By administrative order on March 27, 2009, the Task Force on Residential Mortgage Foreclosure Cases (Task Force) was
―established to recommend to the Supreme Court policies, procedures, strategies, and methods for easing the backlog of pending
residential mortgage foreclosure cases while protecting the rights of parties.‖ In re Task Force on Residential Mortgage Foreclosure
Cases, Fla. Admin. Order No. AOSC09-8, at 2 (March 27, 2009) (on file with Clerk of the Florida Supreme Court). The
recommendations could ―include mediation and other alternate dispute resolution strategies, case management techniques, and
approaches to providing pro bono or low-cost legal assistance to homeowners.‖ Id. The Task Force was also specifically asked to
―examine existing court rules and propose new rules or rule changes that will facilitate early, equitable resolution of residential
mortgage foreclosure cases.‖ Id.
In response to this charge, the Task Force has filed a petition proposing amendments to the civil procedure rules and forms.*fn1
After submission to the Court, the proposals were published for comment on an expedited basis. Comments were received from
Legal Services of Greater Miami, the Florida Justice Institute and Florida Legal Services, Inc; the Housing and Consumer Umbrella
Groups of Florida Legal Services; Legal Services of North Florida, Inc., and North Florida Center for Equal Justice, Inc.; the Florida
Bankers Association; Florida Default Law Group; Ben-Ezra & Katz, P.A; Thomas H. Bateman III and Janet E. Ferris; Henry P. Trawick,
Jr.; and Lisa Epstein. Oral argument was heard in this matter on November 4, 2009. Upon consideration of the Task Force's petition,
the comments filed and responses thereto, and the presentations of the parties at oral argument, we adopt the Task Force's
proposals with minor modifications as discussed below.
First, rule 1.110(b) is amended to require verification of mortgage foreclosure complaints involving residential real property. The
primary purposes of this amendment are (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.
Next, the Task Force proposed a new form Affidavit of Diligent Search and Inquiry. In its petition, the Task Force explained that
many foreclosure cases are served by publication. The new form is meant to help standardize affidavits of diligent search and
inquiry and provide information to the court regarding the methods used to attempt to locate and serve the defendant. We adopt
this form as new form 1.924, with several modifications.
The form, as proposed by the Task Force, provides spaces for the affiant to check off, from a list, the various actions taken to
discover the current residence of the defendant and provides a ―catch-all‖ section where the affiant can ―List all additional efforts
made to locate defendant.‖ Additionally, it provides a section where the affiant can describe ―Attempts to Serve Process and
Results.‖ One comment to this form, voiced by several interested parties, was that the form should be signed by the person actually
performing the diligent search and inquiry, likely a process server, and not the plaintiff as the form, as originally proposed, provided.
The Task Force agreed with this comment. Thus, we modify the form to incorporate this change.
Next, although the Task Force stated in its petition that a significant provision of the new form was the ―additional criteria [sic] that
if the process server serves an occupant in the property, he inquires of that occupant whether he knows the location of the
borrower-defendant,‖ the proposed form does not include this provision. The Honorable Thomas McGrady, Chief Judge of the Sixth
Judicial Circuit, raised this point in his comment and suggested the following provision be added to the form: ―I inquired of the
occupant of the premises whether the occupant knows the location of the borrower-defendant, with the following results:
________.‖ Again, the Task Force agreed with this suggestion, and we modify the form to incorporate it.
Finally, section 49.041, Florida Statutes (2009), sets forth the minimum requirements for an affidavit of diligent search and inquiry
and states as follows:
The sworn statement of the plaintiff, his or her agent or attorney, for service of process by publication against a natural person,
shall show:
(1) That diligent search and inquiry have been made to discover the name and residence of such person, and that the same is set
forth in said sworn statement as particularly as is known to the affiant; and
(2) Whether such person is over or under the age of 18 years, if his or her age is known, or that the person's age is unknown; and
(3) In addition to the above, that the residence of such person is, either:
(a) Unknown to the affiant; or
(b) In some state or country other than this state, stating said residence if known; or
(c) In the state, but that he or she has been absent from the state for more than 60 days next preceding the making of the sworn
statement, or conceals himself or herself so that process cannot be personally served, and that affiant believes that there is no
person in the state upon whom service of process would bind said absent or concealed defendant.
§ 49.041, Fla. Stat. (2009). The form as proposed by the Task Force contains the required information, except for a statement
whether the person is over or under the age of eighteen or that the person's age is unknown. Thus, we modify the affidavit form to
include this information.
Finally, we adopt the Task Force's proposed Motion to Cancel and Reschedule Foreclosure Sale as new form 1.996(b). The Task
Force recommended adoption of this new form in which the plaintiff would provide the court with an explanation of why the
foreclosure sale needs to be cancelled and request that the court reschedule the sale. As the reason for this proposal, the Task
Force stated in its petition:
Currently, many foreclosure sales set by the final judgment and handled by the clerks of court are the subject of vague last-minute
motions to reset sales without giving any specific information as to why the sale is being reset. It is important to know why sales
are being reset so as to determine when they can properly be reset, or whether the sales process is being abused. . . . Again, this
is designed at promoting effective case management and keeping properties out of extended limbo between final judgment and
sale.
We adopt this form with minor stylistic and grammatical modifications as suggested in the comments and agreed to by the Task
Force.
Case No. SC09-1579
In this case, the Civil Procedure Rules Committee has filed an out-of-cycle report under Florida Rule of Judicial Administration
2.140(e), proposing amendments to Florida Rule of Civil Procedure Form 1.996 (Final Judgment of Foreclosure). The Committee
proposes amendments to this form in order to bring it into conformity with current statutory provisions and requirements. The
Committee's proposal also includes several changes suggested by The Florida Bar's Real Property, Probate, and Trust Law Section
to improve the form's clarity and readability and better conform to prevailing practices in the courts.*fn2 Upon consideration, we
adopt the proposed amendments to form 1.996, with one exception, as further explained below.
First, to conform to current statutory requirements, a notice to lienholders and directions to property owners as to how to claim a
right to funds remaining after public auction is added to the form. See § 45.031(1), Fla. Stat. (2009). Additionally, to conform to
current statutory provisions allowing the clerk of court to conduct judicial sales via electronic means, the form is amended to
accommodate this option. See § 45.031(10), Fla. Stat. (2009).
Other amendments are as follows: (1) in order to provide greater clarity and prevent errors, paragraph one of the form is amended
to set out amounts due in a column format; (2) paragraph two is amended to allow for the possibility that there may be more than
one defendant, and out of concern for privacy interests, the lines for an address and social security number are deleted; (3)
paragraph four is amended to conform to existing practice and require a successful purchaser to pay the documentary stamps on
the certificate of title; (4) paragraph six is amended to accommodate the possibility that there may be multiple defendants, to adapt
to the requirements of section 45.0315, Florida Statutes (2009), stating that the right of redemption expires upon the filing of the
certificate of sale, unless otherwise specified in the judgment, to recognize the potential survival of certain liens after foreclosure as
provided in chapter 718 (the Condominium Act) and chapter 720 (Homeowners' Association), Florida Statutes (2009), and to allow a
purchaser to obtain a writ of possession from the clerk of court without further order of the court.*fn3 As noted, these amendments
were suggested to the committee by The Florida Bar's Real Property, Probate, and Trust Law Section to improve the form's clarity
and readability and better conform to prevailing practices in the courts.
However, one of the changes suggested by the Real Property, Probate, and Trust Law Section and incorporated by the committee
into its proposal was the addition of a new paragraph stating that a foreclosure sale shall not begin until a representative of the
plaintiff is present and that the plaintiff has the right to cancel the sale upon notice to the clerk. Obviously, including such a
provision, as standard, in the final judgment of foreclosure form would be at odds with our adoption of new form 1.996(b) (Motion to
Cancel and Reschedule Foreclosure Sale). Accordingly, we decline to adopt this particular amendment. Also, in light of our adoption
of the Motion to Cancel and Reschedule Foreclosure Sale as new form 1.996(b), we renumber the Final Judgment of Foreclosure
Form as form 1.996(a).
Conclusion
Accordingly, the Florida Rules of Civil Procedure and the Forms for Use with Rules of Civil Procedure are hereby amended as set forth
in the appendix to this opinion. New language is underscored; deleted language is struck through. Committee notes are offered for
explanation only and are not adopted as an official part of the rules. The amendments shall become effective immediately upon the
release of this opinion. Because the amendments to form 1.996(a) (Final Judgment of Foreclosure) were not published by the Court
for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments,
on those amendments only, with the Court.*fn4
It is so ordered.
QUINCE, C.J., and PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur. CANADY, J., concurs in part and dissents in part with an
opinion, in which POLSTON, J., concurs.
CANADY, J., concurring in part and dissenting in part.
Because I am concerned that requiring prior judicial approval for the cancellation of foreclosure sales may produce untoward results,
I dissent from the adoption of form 1.996(b). I would have instead adopted the proposal suggested by the Real Property, Probate,
and Trust Law Section for the addition of a paragraph to the form final judgment of foreclosure stating that a foreclosure sale shall
not begin until a representative of the plaintiff is present and that the plaintiff has the right to cancel the sale upon notice to the
clerk.
POLSTON, J., concurs.
APPENDIX
RULE 1.110. GENERAL RULES OF PLEADING
(a) [no change]
(b) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third-party
claim, must state a cause of action and shall contain (1) a short and plain statement of the grounds upon which the court's
jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a
short and plain statement of the ultimate facts showing that the pleader is entitled to relief, and (3) a demand for judgment for the
relief to which the pleader deems himself or herself entitled. Relief in the alternative or of several different types may be demanded.
Every complaint shall be considered to demand general relief. When filing an action for foreclosure of a mortgage on residential real
property the complaint shall be verified. When verification of a document is required, the document filed shall include an oath,
affirmation, or the following statement: ―Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged
th i t d t t th b t f k l d d b li f ‖
therein are true and correct to the best of my knowledge and belief.‖
(c) - (h) [no change]
Committee Notes
[no change]
FORM 1.942. AFFIDAVIT OF DILIGENT SEARCH AND INQUIRY
I, (full legal name) _________________________ (individually or an Employee of ____________________), being sworn, certify
that the following information is true:
1. I have made diligent search and inquiry to discover the current residence of ____________________,who is [over 18 years old]
[under 18 years old] [age is unknown] (circle one). Refer to checklist below and identify all actions taken (any additional information
included such as the date the action was taken and the person with whom you spoke is helpful) (attach additional sheet if
necessary):
[check all that apply]
_____ Inquiry of Social Security Information
_____ Telephone listings in the last known locations of defendant's residence
_____ Statewide directory assistance search
_____ Internet people finder search {specify sites searched}
_____ Voter Registration in the area where defendant was last known to reside.
_____ Nationwide Masterfile Death Search
_____ Tax Collector's records in area where defendant was last known to reside.
_____ Tax Assessor's records in area where defendant was last known to reside
_____ Department of Motor vehicle records in the state of defendant's last known address
_____ Driver's License records search in the state of defendant's last known address.
_____ Department of Corrections records in the state of defendant's last known address.
__ __ Federal Prison records search.
_____ Regulatory agencies for professional or occupational licensing.
_____ Inquiry to determine if defendant is in military service.
_____ Last known employment of defendant.
{List all additional efforts made to locate defendant}
Attempts to Serve Process and Results
__________________________________________________________________
__________________________________________________________________
____ I inquired of the occupant of the premises whether the occupant knows the location of the borrower-defendant, with the
following results: ______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
2._________________________ current residence
[check one only]
_____ a. _________________________'s current residence is unknown to me
_____ b. _________________________'s current residence is in some state or country other than Florida and
_________________________'s last known address is:
________________________________________________________
_____ c. The _________________________, having residence in Florida, has been absent from Florida for more than 60 days prior
to the date of this affidavit, or conceals him (her) self so that process cannot be served personally upon him or her, and I believe
there is no person in the state upon whom service of process would bind this absent or concealed ____________________.
I understand that I am swearing or affirming under oath to the truthfulness of the claims made in this affidavit and that the
punishment for knowingly making a false statement includes fines and/or imprisonment.
Dated: _______________ _________________________________________
Signature of Plaintiff
Printed Name: _____________________________ Address: _____________________________ City, State,

Zip:____________________________ Phone:___________________________________
Telefacsimile:_____________________________
STATE OF ____________________ COUNTY OF __________________
Sworn to or affirmed and signed before me on this _____ day of _____________________, 20 by

__________________________________.
NOTARY PUBLIC, STATE OF _______________
(Print, Type or Stamp Commissioned Name of Notary Public)
_____ Personally known _____ Produced identification
Type of identification produced: _______________________________________
NOTE: This form is used to obtain constructive service on the defendant.
FORM 1.996(a). FINAL JUDGMENT OF FORECLOSURE
FINAL JUDGMENT
This action was tried before the court. On the evidence presented
IT IS ADJUDGED that:
1. Plaintiff, .....(name and address)....., is due .................... as principal, $.......... as interest to date of this judgment, $.......... for title
search expense, $.......... for taxes, $.......... for insurance premiums, $.......... for attorneys' fees, with $.......... for court costs now
taxed, less $.......... for undisbursed escrow funds and less $.......... for unearned insurance premiums, under the note and mortgage
sued on in this action, making a total sum of $........., that shall bear interest at the rate of .....% a year.
Principal $....................
Interest to date of this judgment ....................
Title search expense ....................
Taxes ....................
Attorneys' fees
Finding as to reasonable number of hours: ....................
Finding as to reasonable hourly rate: ....................
Attorneys' fees total ...................
Court costs, now taxed ....................
Other: ..................... ....................
Subtotal $...................
LESS: Escrow balance ....................
LESS: Other .................... ....................
TOTAL $...................
that shall bear interest at the rate of .....% a year.
2. Plaintiff holds a lien for the total sum superior to anyall claims or estates of defendant(s), .....(name and address, and social
security number if known)....., on the following described property in .................... County, Florida:
(describe property)
3. If the total sum with interest at the rate described in paragraph 1 and all costs accrued subsequent to this judgment are not
paid, the clerk of this court shall sell the property at public sale on .....(date)....., between 11:00 a.m. and 2:00 p.m. to the highest
bidder for cash, except as prescribed in paragraph 45, at the ..... door of the courthouse inlocated at .....(street address of
courthouse)..... in .................... County in .........................(name of city)....., Florida, in accordance with section 45.031, Florida
Statutes., using the following method (CHECK ONE):
□ At .....(location of sale at courthouse; e.g., north door)....., beginning at .....(time of sale)..... on the prescribed date.
□ By electronic sale beginning at .....(time of sale)..... on the prescribed date at .....(website)......
4. Plaintiff shall advance all subsequent costs of this action and shall be reimbursed for them by the clerk if plaintiff is not the
purchaser of the property for sale, provided, however, that the purchaser of the property for sale shall be responsible for the
documentary stamps payable on the certificate of title. If plaintiff is the purchaser, the clerk shall credit plaintiff's bid with the total
sum with interest and costs accruing subsequent to this judgment, or such part of it, as is necessary to pay the bid in full.
5. On filing the certificate of title the clerk shall distribute the proceeds of the sale, so far as they are sufficient, by paying: first, all of
plaintiff's costs; second, documentary stamps affixed to the certificate; third, plaintiff's attorneys' fees; fourth, the total sum due to
plaintiff, less the items paid, plus interest at the rate prescribed in paragraph 1 from this date to the date of the sale; and by
retaining any remaining amount pending the further order of this court.
6. On filing the certificate of titlesale, defendant(s) and all persons claiming under or against defendant(s) since the filing of the
notice of lis pendens shall be foreclosed of all estate or claim in the property and the purchaser at the sale, except as to claims or
rights under chapter 718 or chapter 720, Florida Statutes, if any. Upon the filing of the certificate of title, the person named on the
certificate of title shall be let into possession of the property. If any defendant remains in possession of the property, the clerk shall
without further order of the court issue forthwith a writ of possession upon request of the person named on the certificate of title.
7. Jurisdiction of this action is retained to enter further orders that are proper including, without limitation, writs of possession and a
deficiency judgment.
IF THIS PROPERTY IS SOLD AT PUBLIC AUCTION, THERE MAY BE ADDITIONAL MONEY FROM THE SALE AFTER PAYMENT OF PERSONS
WHO ARE ENTITLED TO BE PAID FROM THE SALE PROCEEDS PURSUANT TO THE FINAL JUDGMENT.
IF YOU ARE A SUBORDINATE LIENHOLDER CLAIMING A RIGHT TO FUNDS REMAINING AFTER THE SALE, YOU MUST FILE A CLAIM WITH
THE CLERK NO LATER THAN 60 DAYS AFTER THE SALE. IF YOU FAIL TO FILE A CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING
FUNDS.
[If the property being foreclosed on has qualified for the homestead tax exemption in the most recent approved tax roll, the final
judgment shall additionally contain the following statement in conspicuous type:]
IF YOU ARE THE PROPERTY OWNER, YOU MAY CLAIM THESE FUNDS YOURSELF. YOU ARE NOT REQUIRED TO HAVE A LAWYER OR ANY
OTHER REPRESENTATION AND YOU DO NOT HAVE TO ASSIGN YOUR RIGHTS TO ANYONE ELSE IN ORDER FOR YOU TO CLAIM ANY
MONEY TO WHICH YOU ARE ENTITLED. PLEASE CHECK WITH THE CLERK OF THE COURT, (INSERT INFORMATION FOR APPLICABLE
COURT) WITHIN 10 DAYS AFTER THE SALE TO SEE IF THERE IS ADDITIONAL MONEY FROM THE FORECLOSURE SALE THAT THE CLERK
HAS IN THE REGISTRY OF THE COURT.
IF YOU DECIDE TO SELL YOUR HOME OR HIRE SOMEONE TO HELP YOU CLAIM THE ADDITIONAL MONEY, YOU SHOULD READ VERY
CAREFULLY ALL PAPERS YOU ARE REQUIRED TO SIGN, ASK SOMEONE ELSE, PREFERABLY AN ATTORNEY WHO IS NOT RELATED TO THE
PERSON OFFERING TO HELP YOU, TO MAKE SURE THAT YOU UNDERSTAND WHAT YOU ARE SIGNING AND THAT YOU ARE NOT
TRANSFERRING YOUR PROPERTY OR THE EQUITY IN YOUR PROPERTY WITHOUT THE PROPER INFORMATION. IF YOU CANNOT AFFORD
TO PAY AN ATTORNEY, YOU MAY CONTACT (INSERT LOCAL OR NEAREST LEGAL AID OFFICE AND TELEPHONE NUMBER) TO SEE IF YOU
QUALIFY FINANCIALLY FOR THEIR SERVICES. IF THEY CANNOT ASSIST YOU, THEY MAY BE ABLE TO REFER YOU TO A LOCAL BAR
REFERRAL AGENCY OR SUGGEST OTHER OPTIONS. IF YOU CHOOSE TO CONTACT (NAME OF LOCAL OR NEAREST LEGAL AID OFFICE
AND TELEPHONE NUMBER) FOR ASSISTANCE, YOU SHOULD DO SO AS SOON AS POSSIBLE AFTER RECEIPT OF THIS NOTICE.
ORDERED at ...................., Florida, on .....(date)......
Judge
NOTE: Paragraph 1 must be varied in accordance with the items unpaid, claimed, and proven. The form does not provide for an
adjudication of junior lienors' claims nor for redemption by the United States of America if it is a defendant. The address of the
person who claims a lien as a result of the judgment must be included in the judgment in order for the judgment to become a lien
on real estate when a certified copy of the judgment is recorded. Alternatively, an affidavit with this information may be
simultaneously recorded. For the specific requirements, see section 55.10(1), Florida Statutes; Hott Interiors, Inc. v. Fostock, 721
So. 2d 1236 (Fla. 4th DCA 1998). The address and social security number (if known) of each person against whom the judgment is
rendered must be included in the judgment, pursuant to section 55.01(2), Florida Statutes.
rendered must be included in the judgment, pursuant to section 55.01(2), Florida Statutes.
Committee Notes
1980 Amendment. The reference to writs of assistance in paragraph 7 is changed to writs of possession to comply with the
consolidation of the 2 writs.
2010 Amendment. Mandatory statements of the mortgagee/property owner's rights are included as required by the 2006
amendment to section 45.031, Florida Statutes. Changes are also made based on 2008 amendments to section 45.031, Florida
Statutes, permitting courts to order sale by electronic means.
Additional changes were made to bring the form into compliance with chapters 718 and 720 and section 45.0315, Florida Statutes,
and to better align the form with existing practices of clerks and practitioners. The breakdown of the amounts due is now set out in
column format to simplify calculations. The requirement that the form include the address and social security number of all
defendants was eliminated to protect the privacy interests of those defendants and in recognition of the fact that this form of
judgment does not create a personal final money judgment against the defendant borrower, but rather an in rem judgment against
the property. The address and social security number of the defendant borrower should be included in any deficiency judgment later
obtained against the defendant borrower.
FORM 1.996(b). MOTION TO CANCEL AND RESCHEDULE FORECLOSURE SALE
Plaintiff moves to cancel and reschedule the mortgage foreclosure sale because:
1. On this Court entered a Final Judgment of Foreclosure pursuant to which a foreclosure sale was scheduled for , 20 .
2. The sale needs to be canceled for the following reason(s):
a._______ Plaintiff and Defendant are continuing to be involved in loss mitigation;
b._______ Defendant is negotiating for the sale of the property that is the subject of this matter and Plaintiff wants to allow the
Defendant an opportunity to sell the property and pay off the debt that is due and owing to Plaintiff.
c.________ Defendant has entered into a contract to sell the property that is the subject of this matter and Plaintiff wants to give
the Defendant an opportunity to consummate the sale and pay off the debt that is due and owing to Plaintiff.
d.________ Defendant has filed a Chapter ____ Petition under the Federal Bankruptcy Code;
e.________ Plaintiff has ordered but has not received a statement of value/appraisal for the property;
f. _______ Plaintiff and Defendant have entered into a Forbearance Agreement;
g.________Other
_____________________________________________________________
3. If this Court cancels the foreclosure sale, Plaintiff moves that it be rescheduled.
I hereby certify that a copy of the foregoing Motion has been furnished by U.S. mail postage prepaid, facsimile or hand delivery to
this ______ day of , 20 .
NOTE. This form is used to move the court to cancel and reschedule a foreclosure sale.
Opinion Footnotes
*fn1 The Task Force also submitted a companion report entitled ―Final Report and Recommendations on Residential Mortgage
Foreclosure Cases.‖ The report urges the adoption of the proposed rule amendments and also contains administrative
recommendations. The main recommendation in the report is the - --approval of a Model Administrative Order for a managed
mediation program for residential mortgage foreclosure actions for use by the chief judges. The report was addressed separately as
an administrative matter. The task forces petition also recommended amendments to form 1.997 (Civil Coversheet). However, the
civil coversheet was the subject of another case, case number SC08-1141, and the Task Force's proposals with regard to the civil
coversheet were addressed in that case. See In re Amendments to Florida Rules of Civil Procedure-Management of Cases Involving
Complex Litigation, 34 Fla. L. Weekly S576 (Fla. Oct. 15, 2009).
*fn2 Prior to submitting this proposal to the Court, the committee published it for comment. One comment was received suggesting
that, in addition to the other amendments proposed by the committee, provisions for specific findings as to the reasonable number
of hours and the reasonable hourly rate for an award of attorneys' fees be added to paragraph one of the form. The committee
initially took the position that the comment suggested a change unrelated to its proposed amendments and that the committee
would consider it in its 2013 regular-cycle report. Subsequently, however, the committee filed an additional response in which it
agreed with the comment and recommended that the suggested change be made in this case. We agree with the committee that
this additional change is appropriate and, accordingly, we include it in the amendments adopted in this case.
*fn3 An explanatory committee note is also added.
*fn4 An original and nine paper copies of all comments must be filed with the Court on or before April 12, 2010, with a certificate of
service verifying that a copy has been served on the Committee Chair, Mark A. Romance, 201 S. Biscayne Blvd, Suite 1000, Miami, FL
33131-4327, as well as separate request for oral argument if the person filing the comment wishes to participate in oral argument,
which may be scheduled in this case. The Committee Chair has until May 3, 2010, to file a response to any comments filed with the
Court. Electronic copies of all comments and responses also must be filed in accordance with the Court's administrative order in In
re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).
20100211
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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).
_____________________________________________________________________________/
DISMISSAL OF PREVIOUSLY DISPOSED ACTION AND

CANCELLATION OF ILLEGAL NON-JURY TRIAL AS A MATTER OF LAW
DISMISSAL OF PREVIOUSLY DISPOSED ACTION UNDER RULE 1.420
1. The previously disposed action must be dismissed pursuant to F.R.Civ.P. 1.420, which
states:
(f) Effect on Lis Pendens. If a notice of lis pendens has been filed in connection with
a claim for affirmative relief that is dismissed under this rule, the notice of lis
pendens connected with the dismissed claim is automatically dissolved at the same
time. The notice, stipulation, or order shall be recorded.
08/12/2010 AUTOMATIC DISSOLUTION OF LIS PENDENS
2. Here, the fraudulent notice of lis pendens connected with the 08/12/2010 disposition was
automatically dissolved at the same time, i.e., on 08/12/2010. Defendant Clerk’s unlawful
removal of the disposition record was fraudulent:
1
RECORD “SUGGESTION OF BANKRUPTCY”
3. Here, there has been a suggestion of bankruptcy and the lack of any cause of action on the
record. Allegedly, the mandatory instruments and conditions precedent strictly required to
establish any cause of action were destroyed and/or lost and could not be reestablished,
because, e.g., the manner and time of the loss and/or destruction were UNKNOWN.
Defunct “BankUnited, FSB” underwent bankruptcy.
COUNTERCLAIMANTS ARE ENTITLED TO TRIAL BY JURY

(SEE COUNT I; COUNTERCLAIM)
4. The Counterclaimants/Defendants had demanded and are entitled to trial by jury. Here,
the destroyed/lost instruments could not be reestablished.
THIS COURT ERRED & VIOLATED THE STRICT MANDATE OF RULE 1.440
5. RULE 1.440, SETTING ACTION FOR TRIAL, states:
(a) When at Issue. An action is at issue after any motions directed to the last
pleading served have been disposed of or, if no such motions are served, 20 days
after service of the last pleading. The party entitled to serve motions directed to the
last pleading may waive the right to do so by filing a notice for trial at any time after
the last pleading is served. The existence of crossclaims among the parties shall not
prevent the court from setting the action for trial on the issues raised by the
complaint, answer, and any answer to a counterclaim.
(b) Notice for Trial. Thereafter any party may file and serve a notice that the action
is at issue and ready to be set for trial. The notice shall include an estimate of the time
required, whether the trial is to be by a jury or not, and whether the trial is on the
original action or a subsequent proceeding. The clerk shall then submit the notice and
the case file to the court.
(c) Setting for Trial. If the court finds the action ready to be set for trial, it shall enter
an order fixing a date for trial. Trial shall be set not less than 30 days from the service
of the notice for trial. By giving the same notice the court may set an action for trial.
In actions in which the damages are not liquidated, the order setting an ac-tion for
trial shall be served on parties who are in default in accordance with rule 1.080(a).
(d) Applicability. This rule does not apply to actions to which chapter 51, Florida
Statutes (1967), applies
BINDING PRECEDENT PROHIBITED ANY NON-JURY TRIAL
6. Strict compliance with Florida Rule of Civil Procedure 1.440 is required and failure to do
so is reversible error. See Ramos v. Menks, 509 So.2d 1123 (Fla. 1st DCA 1986); Bennett v.
2
Continental Chemicals, Inc., 492 So.2d 724 (Fla. 1st DCA 1984); see also Broussard v.
Broussard, 506 So.2d 463 (Fla. 2d DCA 1987). Id.
7. Serious consequences occur when a case is set for trial prematurely as here prejudicially
and capriciously by “temporary” “rocket docket” Judge Daniel R. Monaco.
8. Fla.R.Civ.P. 1.440(a) provides that an action is not at issue until all motions directed to the
last pleading have been disposed of, or if no such motions are served, twenty days after
service of the last pleading, unless the party entitled to serve motions waives the right to do
so by filing a notice for trial.
DEFENDANTS’ RECORD OBJECTIONS & OBJECTIONS UNDER RULE 1.440
9. Defendants have objected to, e.g., non-compliance with Florida Rule of Civil
Procedure 1.440, bench-trial, omission of jury trial, omission of evidentiary hearing proving
the lack of “BankUnited’s” standing and lack of right to sue and foreclose the alleged
destroyed and/or lost mortgage/note.
FRAUD ON THE COURT SCHEME BY RETIRED “ROBO” JUDGE MONACO
10. Here, on 02/21/2011, the wrongful foreclosure action had been disposed, and retired
“robo” Judge Monaco could not have possibly “disposed of” Defendants’/Counterclaimants’
“Motion to Dismiss”. Defendant Clerk’s Docket showed a “9:00 AM” hearing, which never
took place on 02/21/2011. Furthermore here, the illegal “02/22/2011 hearing” had been
amended and was then cancelled:
3
11. Fla.R.Civ.P. 1.440(c) provides that a Court may not set the trial less than thirty days from
the time of service of the notice for trial.
12. Said prohibition against setting a cause for trial until the pleadings are settled and twenty
days has passed is apparently to permit the parties to focus their attention on pleading issues
during the time the pleadings are not at issue and then allow them to refocus their attention
on the trial with a built in thirty day hiatus.
13. On 02/17/2011, Defendants had filed their Affidavit conclusively evidencing fraud on the
Court and deliberate deprivations of due process and Counterclaimants’ fundamental
Florida and Federal Constitutional rights.
14. On 02/18/2011, Defendants had filed their Notice of Appeal.
15. On 02/21/2011, the hearing(s) were cancelled.
DISPOSED CASE WAS NOT AT ISSUE
16. Here, the pleadings were open, the pleadings not settled, and the case was not at issue. This
Court had no authority to set the case for non-jury trial.
17. Here at the time of the alleged fraudulent “02/22/2011, 9:00AM, hearing”, this case which
had been disposed on 08/12/2010, was disposed and not at issue:
4
18. In Precision Constructors, Inc. v. Valtec Construction Corp., 825 So. 2d 1062 (Fla. 3rd DCA
2002), the appellate court reversed a final judgment in a case which was tried before the
case was at issue.
NO TIMELY NOTICE OF TRIAL WAS FILED
19. Furthermore here, no notice for trial was filed. See Docket.
20. Said Court held that failure to adhere strictly to the mandates of Rule 1.440 was reversible
error.
ANY NOTICE OF TRIAL WOULD HAVE BEEN NULL & VOID
21. Courts have even held that a notice for trial before the case is at issue is a nullity, not to be
considered on the issue of whether or not there has been record activity under Fla.R.Civ.P.
1.420(e). See Jones v. Volunteers of American North and Central Florida, Inc., 834 So.2d
280 (Fla. 2nd DCA 2003) and Alech v. General Ins. Co., 491 So. 2d 337 (Fla. 3rd DCA 1986).
22. Fla.R.Civ.P. 1.440 must be strictly construed so as not to set a case for trial prematurely.
23. In the event of amendments and/or open pleadings after a case is set, a new notice of trial
must be filed once the pleadings are again settled.
DEPRIVATIONS, TAINTED COURT, AND DEMAND FOR RECUSAL
24. Florida Appellate Courts have strictly construed the requirements of Fla.R.Civ.P. 1.440 to
preclude the setting of a trial when a case is not at issue as in the instant previously
disposed action.
25. Here, this Court did not comply with said Rule and tainted any judgment. The
Counterclaimants defend against the Court’s deliberate deprivations of Counterclaimants’
rights to a jury trial.
5
26. Here, Defendant Judge Monaco knew and/or fraudulently concealed that
a. “BankUnited” had lacked any standing;

b. “BankUnited” had failed to comply with Florida Statutes and Rules of Civil Procedure;
c. The lost/destroyed instruments were not and could not possibly be reestablished;
d. On the facts and the law the party seeking affirmative relief had shown no right to relief.
EMERGENCY DEMAND FOR DISQUALIFICATION/RECUSAL
27. The Defendants/Counterclaimants had filed their
“EMERGENCY DEMAND FOR DISQUALIFICATION/RECUSAL OF

RETIRED ”ROBO” JUDGE D. R. MONACO & REMOVAL OF ‘ROCKET DOCKET’”
DEMAND FOR DISQUALIFICATION OF ROGUE “ROBO” JUDGE D. R. MONACO
28. "The motion [for disqualification] is legally sufficient if the facts alleged demonstrate that
the moving party has a well grounded fear that she or he will not receive a fair trial at the
hands of the judge." See Cave v. State, 660 So. 2d 705, at 708 (Fla. 1995).
29. Here, the moving party and/or Defendants/Counterclaimants were entitled to the demanded
jury trial. However, retired “robo” Judge Daniel R. Monaco has been in the pocket of the
bank(s), and without any authority, set a bench trial for 04/07/2011 during an unlawful and
cancelled “hearing” on “02/22/2011”.
ILLEGAL “HEARING”-SCHEME & DECEPTION
30. Here, Defendant Clerk had reported a “9:00 AM” hearing, which did not take place on
02/22/2011.
EMERGENCY
31. It is an utter emergency when rogue Judges are allowed to
a. Partially and capriciously favor “plaintiff” bank(s);

b. Pervert the law and Florida and Federal Constitutions;
c. Deliberately deprive Defendants of their fundamental rights to due process;
6
d. Deliberately deprive Defendants of their fundamental rights to jury trial;
e. Inore Florida Supreme Court proceedings.
PRIMA FACIE PARTIALITY & FRAUD ON COURT BY DEFENDANT MONACO
32. Here, rogue “robo” Judge Daniel R. Monaco agreed with the bank to keep the pro se
Defendants/Counterclaimants away from the Court and to perpetrate fraud upon this
Court. In particular, said retired Judge knew and/or fraudulently concealed that
a. “BankUnited” could not verify ownership of the destroyed/lost mortgage and/or note;
b. “BankUnited” had no right to enforce the missing instruments;
c. “BankUnited” could not ensure that the allegations in its facially frivolous complaint
were accurate;
d. “BankUnited” wasted judicial resources on lost note counts and inconsistent
allegations;
e. “BankUnited” could not possibly reestablish the lost/destroyed instruments;
f. Counterclaimants/Defendants were entitled to jury trial, because “BankUnited” had
prayed for reestablishment of alleged destroyed/lost instruments (Count I).
COUNTERCLAIMANTS HAD DEMANDED RELIEF FROM EXTRINSIC FRAUD

33. Because of Monaco’s misconduct and collateral extrinsic fraud on the record, the
Defendants/Counterclaimants had filed their:
“EMERGENCY MOTION TO RELIEVE DEFENDANTS/COUNTERCLAIMANTS

FROM FRAUDULENT “ORDER” BY RETIRED “ROBO” JUDGE D. L. MONACO
AND VACATE PROCEEDINGS, ORDER, AND NON-JURY TRIAL”
D. R. MONACO DID NOT COMPLY WITH INTENT OF FLORIDA SUPREME COURT

34. Here, because of frivolous and/or insufficient bank complaints, the Florida Supreme Court
required verification of mortgage foreclosure complaints in amended Rule 1.110(b):
… require verification of mortgage foreclosure complaints involving residential real

property. The primary purposes of this amendment were (1) to provide incentive for
the plaintiff to appropriately investigate and verify its ownership of the note or right
to enforce the note and ensure that the allegations in the complaint are accurate; (2) to
conserve judicial resources that are currently being wasted on inappropriately
pleaded ―lost note counts and inconsistent allegations; (3) to prevent the wasting
of judicial resources and harm to defendants resulting from suits brought by
plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority
to sanction plaintiffs who make false allegations.
7
See In re Amendments to the Florida Rules of Civil Procedure, Supreme Court of Florida,
Rule 1.110; Form 1.924.
ROGUE JUDGES “BENCH-TRIAL” FRAUD SCHEME
35. A cause can be dismissed for fraud upon the showing of pretense, fraud, collusion and/or
other similar wrongdoing as conclusively evidenced in this case of alleged lost/destroyed
instruments.
36. Here on “02/22/2011”, rogue Judge Monaco had deliberately deprived the
Defendants/Counterclaimants of their rights to dismissal of the prima facie fraudulent
action.
37. Here, “BankUnited’s” testimony was impeached with inconsistencies on material issues,
and “plaintiff’s” and Counsel’s veracity and credibility had been clearly placed in question.
38. Whether the alleged exhibits of the lost/destroyed note's essential terms proffered by
“BankUnited” were adequate for their reestablishment was a matter for determination by the
triers-of-fact in a jury trial and cannot be decided as a matter of law.
EVIDENCE OF PREJUDICE ON THE RECORD & JUDGE’S RECUSAL REFUSAL
39. Here, said temporary “rocket docket” Judge Monaco exceeded the proper scope of inquiry,
which alone was a basis for disqualification. See Fla. R. Jud. Admin. 2.160(g); Cave v.
State, 660 So. 2d 705, 708 (Fla. 1995) ("When a judge has looked beyond the mere legal
sufficiency of a suggestion of prejudice and attempted to refute the charges of partiality, he
has then exceeded the proper scope of his inquiry and on that basis alone established grounds
for his disqualification.") (citations omitted); J&J Indus., Inc. v. Carpet Showcase of Tampa
Bay, Inc., 723 So. 2d 281, 283 (Fla. 2d DCA 1998) ("Attempts to refute the charges of
partiality exceed the scope of inquiry and alone establish grounds for disqualification.")
(citations omitted); Kielbania v. Jasberg, 744 So. 2d 1027, 1028 (Fla. 4th DCA 1997)
8
(holding that "even though there is no evidence of actual bias, we find that recusal is
necessary to satisfy the appearance of justice."). Here, this previously disposed case must be
assigned to a different judge for further proceedings and be removed from this Court’s
notorious “rocket docket”.
03/02/2011 COUNTERCLAIM & DEFENDANT JUDGE MONACO

40. 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

41. Defendants had raised well-evidenced fraud and fraud on the court issues.
08/12/2010 DISPOSITION RECORD & LACK OF “PLAINTIFF’S” STANDING
42. 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
43. Here, Defendant Clerk knew that the wrongful foreclosure action had been disposed for,
e.g., lack of “plaintiff’s” standing after suggestion of bankruptcy:
“Report cases disposed when a suggestion of bankruptcy is filed. Cases involving
multiple defendants should not be reported disposed at this juncture if disposition is
still pending as to remaining defendants. The case is to be reported in the SRS
disposition category that results in the greatest amount of judicial activity (See
Number of Dispositions, page 4-2).” See CIRCUIT CIVIL 4-7 (Rev. Jan 2010).
DEFENDANT CLERK KNEW OF WRONGFUL DISPOSED ACTION
44. 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;
45. 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.
9
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

46. 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

47. Here, this Court knew that Defendants/Counterclaimants had filed their Notice of Appeal on
02/18/2011 and that retired “robo” Judge Daniel R. Monaco:
a. Had no jurisdiction;
b. Presided over a sham hearing on 02/22/2011;
c. Conducted a sham hearing that had been amended to a 02/14/11 hearing and then been
cancelled;
ROGUE “ROBO” JUDGE MONACO’S “ROCKET DOCKET” TACTICS
48. 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
49. Defendant Clerk of Court, Dwight E. Brock, is the custodian of the Collier County Public
Records.
50. 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
51. Here, bankrupt and defunct “BankUnited, FSB” had no standing, and the alleged
lost/destroyed instruments never transferred to “BankUnited”. See complaint.
52. 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,
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

53. 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.
11
DEFENDANT CLERK LACKS AUTHORITY TO MAKE JUDICIAL DETERMINATION
54. 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
55. The Counterclaimants demand that this Court vacate said wrongful “order” and proceeding.
PLEADINGS TO VACATE FRAUDULENT 02/22/11 PROCEEDING AND ORDER
56. 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.
“SUGGESTION OF BANKRUPTCY” ON THE RECORD & CLERK’S ERROR

57. 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 …”
12
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.
58. 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
59. 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.
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.
13
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
60. 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”

61. 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
62. 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.
63. 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
64. 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
14
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.
65. Here, “defendant(s) filed suggestion [and conclusive evidence] of bankruptcy” and the case
was to be reported as disposed.
66. In error, the Clerk of Court had reported bankrupt “BankUnited, FSB” as a “plaintiff”.
67. 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
68. 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
69. 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.
15
70. 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.
71. 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.
72. Apparently here, “robo” Judge Monaco seeks to deprive the defendants of due process.
73. 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).
74. 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.
75. Here, counterclaimants’ fundamental due process rights are being violated by the defective
notice of (non)-jury trial.
KNOWN LACK OF JURISDICTION
76. 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”.
77. 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

78. 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
16
UNKNOWN]. Here, “BankUnited” and the Court knew that reestablishment was legally
impossible.
COUNTERCLAIM(S) AT COMMON LAW AND DEMAND FOR JURY TRIAL
79. 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.
80. Pursuant to Rule 1.170, the counterclaimants have claims for affirmative relief against
“BankUnited”, Albertelli Law, Daniel R. Monaco, and the Clerk of Court.
81. 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
(25 6TH Street North Naples, FL), which is in the possession of the defendant
counterclaimants.
82. 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
17
83. “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.
84. 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.
85. 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
86. 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
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
87. Purported “plaintiff” “BankUnited” does not own and hold any genuine note and mortgage.
88. “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).
89. Here, “BankUnited” even pleaded inability to establish holder in due course status because
of the UNKNOWN loss and/or destruction of the alleged instruments.
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90. 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.”
91. Here, there was no evidence as to WHO possessed the note WHEN it was lost/destroyed.
92. 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”.
93. [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.]
94. The alleged mortgage copy did not contain a copy of the alleged executed note.
95. “BankUnited” fraudulently prayed for reestablishment, no order reestablishing the lost
instruments was entered, and the wrongful action was disposed on 08/12/2010.
96. As a matter of law, reestablishment of the note was impossible under Ch. 673, Florida
Statutes, and the Uniform Commercial Code.
97. “BankUnited” is not in possession of the purported note and mortgage and not entitled to
enforce them.
98. “BankUnited” did not know WHO destroyed and/or lost the instruments WHEN and
HOW.
99. “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.
100. “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).
101. On 05/21/2009, “BankUnited, FSB” was seized.
19
102. Here, there had been seizure and transfer which prohibited re-establishment.
103. “BankUnited” never produced nor re-established any authentic note and/or mortgage as
proven by the evidence before this Court.
104. 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.
105. This Court knew that “BankUnited’s” facially fraudulent affidavits were sham.
106. 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.
107. “BankUnited” had to, but failed, to prove the terms of the alleged instruments and the
person’s right to enforce the alleged instruments.
108. Here, “BankUnited” failed to prove any terms, and the terms of the alleged obligation
and/or instrument were vague and ambiguous.
109. Here, Walter Prescott neither executed the purported note nor “loan modification
agreement”.
FRAUDULENT, NULL, AND VOID “AFFIDAVITS”
110. This Court may not enter judgment in favor of “BankUnited”, because the Court knew
that the defendant counterclaimants are not adequately protected against loss and
“BankUnited’s” fraud on the Court by means of, e.g., null and void affidavits.
a. Controverted by the record evidence, “BankUnited” fraudulently stated under oath that
said disposed wrongful action was “uncontested” and allegedly devoid of genuine issues
of material fact. See, e.g., “Affidavit of Plaintiff’s Counsel as to attorney’s fees and costs”.
b. The “Albertelli Law” foreclosure mill employed unlawful “robo-signers” and “robo-
signing” schemes.
c. Barbie Fernandez fraudulently stated under oath, e.g., that BankUnited is the owner or
servicer for the owner of the lost/destroyed and non-reestablished instruments. See
“Affidavit as to amounts due and owing”;
d. Ashley Simon, Esq., stated under oath, e.g., that she had “not reviewed the actual file in
this case”. See “Affidavit as to reasonable attorneys fees”.
111. 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.
20
112. Defendant counterclaimants did not default under the destroyed and/or lost note and
mortgage, and no payment was due to “BankUnited”.
113. “BankUnited” failed to assert any chain of title and/or assignment of the destroyed/lost
note and mortgage.
ALLEGED DESTROYED / LOST INSTRUMENTS / “LOAN MODIFICATION”
114. 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.
115. Fraud was specifically articulated in United States v. Throckmorton, 98 U.S. 61, 65-66,
25 L. Ed. 93 (1878), in which the United States Supreme Court said:
Where the unsuccessful party has been prevented from exhibiting fully his case,
by fraud or deception practiced on him by his opponent, as by keeping him away
from court, a false promise of a compromise; or where the defendant never had
knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an
attorney fraudulently or without authority assumes to represent a party and connives
at his defeat; or where the attorney regularly employed corruptly sells out his client's
interest to the other side--these, and similar cases which show that there has never
been a real contest in the trial or hearing of the case, are reasons for which a new suit
may be sustained to set aside and annul the former judgment or decree, and open the
case for a new and a fair hearing. (Citations omitted.)
Consistent with the general rule, Florida Courts have defined fraud as the
prevention of an unsuccessful party [from] presenting his case, by fraud or deception

practiced by his adversary; keeping the opponent away from court; falsely promising
a compromise; ignorance of the adversary about the existence of the suit or the acts of
the plaintiff; fraudulent representation of a party without his consent and
connivance in his defeat…
21
COUNT I: FRAUD COUNTERCLAIM AGAINST DANIEL R. MONACO
116. 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.
117. Here, “BankUnited’s” and Daniel R. Monaco’s conduct were collateral to the allegations,
exhibits, and issues complained of.
118. 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
119. Thus, retired “robo” Judge Monaco’s non-jury trial did not square with the
requirements of the governing Constitutions and Statutes.
120. Accordingly, a jury trial on all issues triable by jury must be granted.
121. 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
122. 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
22
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.
123. 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.
124. 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.
125. Apparently here, “robo” Judge Monaco seeks to deprive the defendant counterclaimants
of due process.
126. 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).
127. 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.
128. Here, counterclaimants’ fundamental due process rights are being violated by the
defective notice of (non)-jury trial.
“ROCKET DOCKET” – FRAUD & SPEED INSTEAD OF JUSTICE
129. 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).
23
130. 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.
131. 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.
132. 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.
133. 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).
134. If arbitrarily and capriciously, after the 08/12/2010 disposition, the foreclosure action
were to proceed to judgment in favor of “BankUnited”, then a jury would be bound by these
findings of fact, which facts are inextricably interwoven with the issues presented by the
defendant counterclaimants’ affirmative defenses and counterclaims. Thus, to allow the
foreclosure action to proceed before the petitioners' legal counterclaims would deny them
their fundamental right to a jury trial, which they have demanded, on those issues.
TEMPORARY “ROBO JUDGE MONACO IS BIASED IN FAVOR OF BANK(S)
135. 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.
24
Jacobsen, 566 So. 2d 885 (Fla. 4th DCA 1990); WM Specialty Mortgage, LLC v. Salomon,
874 So. 2d 680, 682 (Fla. 4th DCA 2004).
136. 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.
137. “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).
138. Here, “BankUnited” had neither standing nor any real interest and could not have
possibly enforced the lost and/or destroyed instruments.
139. 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.
140. 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.
141. Here no mortgage could possibly secure a non-existing obligation.
COUNT I: FRAUD COUNTERCLAIM AGAINST CLERK OF COURT
142. 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
25
143. 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.
144. 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.
145. 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
146. 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.
147. 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.
148. Here, Albertelli Law concealed that the required chain of title was not in evidence.
149. 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).
150. 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.
26
RECORD LACK OF ADMISSIBLE EVIDENCE IN DISPOSED WRONGFUL ACTION
151. Defendants did not execute and deliver an authentic promissory note and mortgage to
“BankUnited”.
152. Under Florida law delivery is necessary to validate a negotiable instrument.
153. Here, neither any note nor mortgage were assigned and delivered to “BankUnited”.
154. 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
155. 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.
156. 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.
157. Thereafter, Alfred Camner, Esq., Serena Kay Paskewicz, Esq., and/or the Camner Lipsitz
Law Firm were fired.
CONCEALMENT OF LOST AND/OR DESTROYED F.D.I.C. RECORDS
158. 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.
159. 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.
160. 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
27
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).
161. 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).
162. 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
163. "'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).
164. 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
165. 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.
28
166. The court failed to communicate and notice the counterclaimants.
167. 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."
168. 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.
169. The counterclaims are unquestionably suits at law seeking damages, the traditional
realm of the civil jury trial.
170. 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.
171. The claims at law are intermixed with the previously disposed wrongful foreclosure
action.
172. 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.
173. 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
29
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
174. 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)
175. In this instance, Florida's quiet title statute specifically authorizes a trial by jury. Section
65.061(1), Florida Statutes (2010), provides in pertinent part that:
…if any defendant is in actual possession of any part of the land, a trial by jury
may be demanded by any party, whereupon the court shall order an issue in
ejectment as to such lands to be made and tried by a jury…
Thus, in Westview Community Cemetery of Pompano Beach v. Lewis, 293 So. 2d 373 (Fla.
4th DCA 1974), the court held that because a defendant on the counterclaim was a defendant
in actual possession of the land in question, either party was entitled to a jury trial on the
issues presented.
176. 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
30
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
177. The counterclaimants are suing for breach of contract based on “BankUnited’s” record
actions of filing untrue affidavits and failure to account.
178. “BankUnited” materially breached its duty of good faith and fair dealing, which
resulted in proximate damages.
FACIALLY FRAUDULENT ACCOUNTING & NULL & VOID AGREEMENT
179. 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).
180. Even though said “modification agreement” was not legally binding, “BankUnited”
wrongfully sought to enforce the null & void “agreement”:
“The interest rate required by this section 1 (7.625%) is the rate I will pay both before
and after any default described in the note.”
Here, the October 2010 “Affidavit as to amounts due and owing” fraudulently stated a
“7.625% interest rate”.
181. 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
182. 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
31
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
183. Defendants’ affirmative defenses defeated the disposed action by a denial and/or
avoidance. “Defendants” admitted the UNKNOWN loss and/or destruction of the alleged
instruments, which could not be reestablished as a matter of law. See Schupler v.Eastern
Mortgage Co., 160 Fla. 72, 33 So.2d 586 (1948); Lovett v. Lovett, 93 Fla. 611, 112 So. 768
(1927).
184. 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.
185. 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).
186. Here, “BankUnited” did not dispute that it failed to rebut defendants’ affirmative
defenses.
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187. Here, Defendants’ action/compulsory counterclaim for, e.g., damages for fraud and
breach of contract, were both common law actions for damages.
188. 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
189. 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.
190. 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.
191. 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).
33
192. “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.
193. This court cannot determine the factual issues of fraud and misrepresentation without
evidence and without a fact-finding jury.
194. Thus, the Court must first resolve the affirmative claims and defenses of fraud and
misrepresentation. Any other way would be error.
195. 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”
196. The defendants in this disposed wrongful mortgage foreclosure action appealed the
order(s) entered at the illegal and cancelled “02/22/2011 hearing”.
197. 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
198. Here, it would be error to proceed with the previously disposed wrongful foreclosure
action before jury trial on the interrelated legal counterclaim(s).
199. 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
200. Defendant counterclaimants had demanded trial by jury.
34
201. Defendants are entitled to trial by jury on, e.g., Count I of Plaintiff’s complaint
(reestablishment of lost instruments).
202. Here, defendants have a fundamental right to jury trial in Florida’s State Courts.
203. 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.
204. 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.
205. Florida courts have consistently highlighted the importance of the right to a trial by
jury.
206. "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”
35
207. 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.
208. 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).
209. 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.
ANSWER TO COMPLAINT BY BANKRUPT BANK’S FOUNDER ALFRED CAMNER
210. 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).
211. 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.
212. This Court knew that “BankUnited” did not establish its entitlement to foreclose the
mortgage as a matter of law.
213. After said 2010 disposition, the action was never reopened.
214. 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”.
36
215. 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).
216. 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.
217. On 02/22/2011, retired “rocket docket” Judge Monaco had no authority to deny
defendants’ Motion to Dismiss.
DENIALS AND AFFIRMATIVE DEFENSES
218. 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:
219. Paragraph 1 of purported “plaintiff’s” complaint is denied.
220. 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.
221. Here, no “default” has and/or could have possibly occurred, and no contractual obligation
existed.
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222. 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.
223. Paragraph 4 is denied.
225. 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.
228. Paragraph 9 is denied. “BankUnited” is not any “successor in interest to” “BankUnited,
FSB”.
229. 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.”
232. Paragraph 13 is denied. Furthermore, said paragraph is grammatically in error.
233. Here, paragraph 14 was vague and ambiguous as there were two “paragraph 14”.
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234. 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.
235. 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.”
236. 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,
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
237. Jennifer Franklin-Prescott owns the property at 25 6th Street North, Naples, Florida 34102.
238. 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.
239. Pursuant to § 48.23(2), Fla. Stat. (2010), the notice of lis pendens became invalid on
07/10/2010.
240. 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).
39
241. 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).
242. 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.
243. 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.
244. 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.
245. Paragraphs 17, 18, and 19 are denied.
246. 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.
247. 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.
250. Paragraph 22 is denied as the sentence is incomplete.
251. Paragraph 23 is denied in the record absence of any enforceable instruments.
40
252. 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.
253. “BankUnited” filed the wrongful suit after the May 2009 seizure of defunct
“BankUnited, FSB”.
254. After bankrupt “BankUnited, FSB” was seized, its troubled founder, Alfred Camner,
Esq., complained of an UNKNOWN loss/destruction of the purported instruments.
255. 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”.
256. Here, time and manner of the loss were UNKNOWN pursuant to the 07/09/2009
complaint.
257. Here, “BankUnited” was not any assignee and did not hold title in the purported
lost/destroyed instruments.
258. Here, the record had conclusively evidenced the lack of any chain of title.
259. “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.
260. 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.
261. The destroyed/lost instruments were unenforceable as a matter of law. See, e.g., section
673.3091, Florida Statutes.
41
262. 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).
263. 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.
264. 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.
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.]
265. 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
42
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).
266. Here, this Court knew that “BankUnited” had no standing and/or right to sue and/or
foreclose.
267. This Court knew that defendants had demanded indemnification of defendants for
[wrongful] prosecution on the purported destroyed and/or lost instruments.
268. So far, this Court did not require a bond pursuant to Lovingood v. Butler Construction
Co., 131 So. 126, 135 (Fla. 1930).
269. 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).
270. 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.
43
271. The law prohibits “rocket dockets” for speed and errors at the expense of justice in favor
of banks and lenders.
272. Here, the Docket showed “Judge Hugh D. Hayes” and the lack of any “Reopen Reason”
after the 08/12/2010 disposition:
273. 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,
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
274. 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
44
NATIONAL EMERGENCY AND PRESCOTT’S NOTICE OF UNAVAILABILITY
275. 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
276. 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
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).
277. 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.
45
Having failed to provide the original note and mortgage at the time of filing, “plaintiff”
could not sue and/or maintain this disposed action.
278. 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
279. 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
280. 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.
46
PRESCOTT FEARS FURTHER FRAUD, DEPRIVATIONS & SHAM PROCEEDINGS
281. 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.
282. 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 dismissing the previously disposed action after automatic dissolution of the
alleged lis pendens and in the record absence of any cause of action;
2. An Order striking the bench-trial for the foresaid grounds and non-compliance with said
Rule 1.440;
3. An Order vacating the fraudulent 02/22/2011 proceeding and “order”;
4. An Order for the disqualification/recusal of retired “robo” Judge Daniel R. Monaco;
5. An Order for the removal of said “rocket docket”;
6. An Order vacating the prejudicial non-jury trial;
7. An Order for compensatory and punitive damages in favor of counterclaimant fraud
victims;
8. An Order for compensatory and punitive damages for breach of contract in favor of
counterclaimants;
9. 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;
47
10. An Order dismissing the previously disposed wrongful foreclosure action because
“BankUnited” had no standing and failed to state a cause of action;
11. An Order canceling any non-jury and/or bench trial;
12. 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;
13. 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;
14. Proper processing of this NOTICE OF APPEAL and/or INTERLOCUTORY APPEAL;
15. 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;
16. An Order declaring the “correction of the disposition record” unlawful and prejudicial at
Franklin-Prescott’s expense;
17. 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;
18. An Order taking judicial notice of said binding precedent (BAC Funding) in support of the
record 08/12/2010 disposition;
48
19. 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;
20. 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;
21. An Order declaring the cancelled “02/22/2011 hearing” unauthorized in this disposed
action;
22. An Order declaring “BankUnited’s” prima facie sham “motion(s)” and “affidavits”
unlawful in this previously disputed and disposed action;
23. An Order declaring the purported note and/or mortgage unenforceable;
24. An Order taking judicial notice of the prima facie unenforceability of the unrecorded,
un-assignable, and unpaid mortgage (unpaid mortgage taxes);
25. An Order declaring the purported “plaintiff” to be in violation of Fed.R.Civ.P. 1.510 in this
disposed and previously controverted action;
26. 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;
27. An Order declaring said affidavits “hearsay” and lacking any legal and/or factual basis in
the absence of any authentic “note” and/or mortgage;
28. 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;
29. An Order prohibiting Counsel and/or Jason M. Tharokh, Esq., who did not file any notice
from appearing in this disposed action.
Respectfully,
49
/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 09, 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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3/8/2011 FindACase™ | In re Amendments to th…

(a) Unknown to the affiant; or

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In re Amendments to the Florida Rules of Civil Procedure

Supreme Court of Florida

Docket Number available at www.versuslaw.com

February 11, 2010

IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE.

Two Cases: Original Proceeding -- Florida Rules of Civil Procedure

Case No. SC09-1460

(a) Unknown to the affiant; or

CANADY, J., concurring in part and dissenting in part.

POLSTON, J., concurs.

RULE 1.110. GENERAL RULES OF PLEADING

(a) [no change]

(c) - (h) [no change]

FORM 1.942. AFFIDAVIT OF DILIGENT SEARCH AND INQUIRY

[check all that apply]

_____ Inquiry of Social Security Information

_____ Telephone listings in the last known locations of defendant's residence

_____ Statewide directory assistance search

_____ Internet people finder search {specify sites searched}

_____ Nationwide Masterfile Death Search

__ __ Federal Prison records search.

_____ Regulatory agencies for professional or occupational licensing.

_____ Inquiry to determine if defendant is in military service.

_____ Last known employment of defendant.

{List all additional efforts made to locate defendant}

Attempts to Serve Process and Results

2._________________________ current residence

[check one only]

_____ a. _________________________'s current residence is unknown to me

Dated: _______________ _________________________________________

Printed Name: _____________________________ Address: _____________________________ City, State,

STATE OF ____________________ COUNTY OF __________________

Sworn to or affirmed and signed before me on this _____ day of _____________________, 20 by

NOTARY PUBLIC, STATE OF _______________

(Print, Type or Stamp Commissioned Name of Notary Public)

_____ Personally known _____ Produced identification

Type of identification produced: _______________________________________

NOTE: This form is used to obtain constructive service on the defendant.

FORM 1.996(a). FINAL JUDGMENT OF FORECLOSURE

Interest to date of this judgment ....................

Title search expense ....................

Finding as to reasonable number of hours: ....................

Finding as to reasonable hourly rate: ....................

Attorneys' fees total ...................

Court costs, now taxed ....................

Other: ..................... ....................

LESS: Escrow balance ....................

LESS: Other .................... ....................

□ By electronic sale beginning at .....(time of sale)..... on the prescribed date at .....(website)......

ORDERED at ...................., Florida, on .....(date)......

FORM 1.996(b). MOTION TO CANCEL AND RESCHEDULE FORECLOSURE SALE

2. The sale needs to be canceled for the following reason(s):

a._______ Plaintiff and Defendant are continuing to be involved in loss mitigation;

f. _______ Plaintiff and Defendant have entered into a Forbearance Agreement;

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

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

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

Florida Supreme Court & Foreclosure Fraud

Florida Supreme Court & Foreclosure Fraud

Federal Prison records search.

_ a. _____________________'s current residence is unknown to me

Dated: _ ___________________________

Printed Name: _ Address: _ City, State,

STATE OF __ COUNTY OF

Sworn to or affirmed and signed before me on this _ day of _________________, 20 by

_ Personally known _ Produced identification