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www.ca.cjis20.org/web/…/jacs.asp 3/3
2/22/2011 POLL Collier’s new foreclosure hearing…
POLL COLLIER’S NEW FORECLOSURE HEARING PROCESS FAVORS BANKS, ATTORNEYS SAY
By LAURA LAYDEN
Published Sunday, June 20, 2010
NAPLES — Foreclosure attorneys who represent homeowners say recent changes in the way hearings
are scheduled in Collier County have given banks the upper hand.
They say they’ve had trouble getting hearings and that five-minute hearings on foreclosure cases appear
to now be reserved for banks’ motions for default and summary judgment.
When a bank gets a summary judgment, it has the right to take a house. At that point, a homeowner is
unlikely to get a second chance.
Mark Middlebrook, a senior deputy court administrator in Collier County, said, “We have not changed
anything regarding the scheduling of these hearings. That’s absolutely not true.”
Foreclosure hearings are scheduled through an automated calendaring system online called JACS. Users
in Collier County are warned to read the foreclosure rules carefully “due to recent changes.”
Under the rules for booking hearings, it says “only hearings for summary judgment and default may be
scheduled for the five-minute time slots. In parenthesis, it says: “Do not schedule other hearings in these
time slots.”
Foreclosure attorneys who represent homeowners say these rules only appear to apply in Collier and
they’ve never been enforced until recently.
“Somebody is speaking without understanding how the scheduling occurs,” Middlebrook said.
He said five-minute hearings still are available outside of an online calendaring system and that changes
are planned over the coming months that will significantly increase the amount of hearing time available for
foreclosure cases.
With money from a state grant, Collier County plans to increase hearings from one day a week to three by
August. In January, there will be hearings four days a week, Middlebrook said.
Defense attorneys likely haven’t been getting hearings because there’s such a backlog of cases and time
slots fill up so quickly, not because of any rule changes, Middlebrook said. There are about 9,000
unresolved foreclosure cases in the county and that’s why changes are planned in the future, he said.
…naplesnews.com/…/colliers-new-fore… 1/4
2/22/2011 POLL Collier’s new foreclosure hearing…
“There just wasn’t enough time available to accommodate everybody,” Middlebrook said.
Mike Schneider, a Naples foreclosure attorney who represents homeowners, said the rules have changed
in favor of the banks.
He said he was taken off-guard recently when a five-minute hearing he scheduled through the online
calendar was automatically canceled by the court through an e-mail.
When he tried to schedule a 10-minute hearing _ the next shortest time slot available _ for the same client,
there were none available for months. It’s even harder to book 15-minute or 30-minute hearings, he said,
and he doesn’t need that much time.
“I guarantee many people have lost their house because of this,” Schneider said. “How are we supposed
to argue our case?”
Dwight Brock, Collier County’s clerk of courts, said he wasn’t aware of any new rules and his office had
nothing to do with them.
Schneider said he was trying to stop a foreclosure that never should have been filed. He struggled to get a
hearing.
His client signed a forbearance agreement, in which the lender agreed to temporarily modify the loan
payments and not foreclose. The lender foreclosed anyway, Schneider said.
“They are coming to his house and basically telling him to get out,” he said. “That’s just one of a million
stories.”
Marc Shapiro, one of the most active foreclosure defense attorneys in Naples, said he used to schedule
his motions for five-minute hearings online, but now he can’t.
He can argue a homeowner’s case during a hearing on a motion for summary judgment, but time is limited.
At that point it might be too late.
Judges often frown on requests for emergency hearings. So some attorneys say they generally don’t ask
for them.
In one of Shapiro’s cases, he was trying to get a court order to force a bank to produce documents it had
refused to share and he couldn’t get a hearing a few weeks ago. Meanwhile, the bank was proceeding to
foreclose.
…naplesnews.com/…/colliers-new-fore… 2/4
2/22/2011 POLL Collier’s new foreclosure hearing…
Shapiro also saw some of his five-minute hearings suddenly canceled recently. It hadn’t happened like that
before, he said.
For about a month, few hearings were available to defense attorneys on foreclosure cases.
“As of last week they started freeing up more time for us,” said Donald Schold, one of Shapiro’s legal
assistants. “The bank is still the only ones to get the five-minute hearings, which for some reason are
being set before our hearing dates.”
In Collier, foreclosure cases that are contested by homeowners are mostly handled by magistrates. To
have their arguments heard by a magistrate, foreclosure attorneys who represent homeowners must get
an order of referral from a judge.
Banks aren’t required to do the same for hearings on their motions for summary judgment, giving them
another time advantage, attorneys who represent homeowners say.
Where foreclosures might have taken a year or two in the past, now they can happen in less than six
months.
Conrad Willkomm, another foreclosure defense attorney in Naples, said he hasn’t faced any big problems
in scheduling his hearings.
“A lot of the time, I’m letting the banks schedule the hearings, and we’re working around them,” he said.
Even if a bank gets a hearing on a motion for summary judgment, a judge can continue the hearing if
there are motions pending from the defense that haven’t been heard.
“It’s not like you lose the case out from under you,” Willkomm said. “Usually we are in front of the
magistrates for a lot of these cases and the magistrates have been pretty cooperative.”
9 COMMENTS
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2/22/2011 POLL Collier’s new foreclosure hearing…
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2/22/2011 Naples Attorneys complain – Collier Co…
Wednesday, June 23rd, 2010 | Posted by Amitesh Kumar
What happens when a bank gets a summary judgment? It gets the right to forfeit a house, when the
distressed homeowner is not likely to get a second chance.
The officials of the Court deny these allegations. According to Mark Middlebrook, a senior deputy
court administrator in Collier County, this is absolutely not true and they have not changed anything
regarding the scheduling of these hearings.
In the normal course, Foreclosure hearings are scheduled through an automated calendaring system
online, known as JACS. In Collier County, users are warned to read the foreclosure rules carefully
“due to recent changes”. But Middlebrook refutes that the changes have not been made yet.
The practice at Collier County is foreclosure cases that are contested by homeowners are generally
handled by magistrates. Foreclosure attorneys representing homeowners must get an order of referral
from a judge, to have their arguments heard by the concerned magistrate.
Attorneys on behalf of homeowners, handling foreclosure cases say that Banks are not required to do
the same for hearings on their motions for summary judgment, which gives them unfair time advantage.
With the result, where foreclosures might have taken a year or two in the past, the Attorneys allege
that they can happen now in less than six months.
What the rules are saying? The rules for booking foreclosure hearings say “only hearings for summary
judgment and default may be scheduled for the five-minute time slots”. In other words it says “Do not
schedule other hearings in these time slots”.
Naples foreclosure Attorneys, representing troubled homeowners, caught in the legal proceedings of
foreclosures, say that these rules only appear to apply in Collier County and they have never been
enforced until recently.
So the tussle continues and we will see more of it in the near future.
Share/Bookmark
naplesshortsaleexperts.com/…/naples-… 1/1
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
BANKUNITED,
non-successor in interest to [lawfully seized] BANKUNITED, FSB.,
purported plaintiff(s),
CERTIFIED DELIVERIES
The Honorable Daniel R. Monaco
The Hon. Hugh D. Hayes, “Disposition Judge”
Circuit Court Judges, Twentieth Judicial Circuit
Judicial Assistants Karen / Jan
Collier County Government Complex
3301 Tamiami Trail East
Naples, Florida 34112
Phone: 239.774.8118; 239.252.8119;
Fax: 239.252.8870; 239.775.5538; 239.774.9654; 239-252-8020
Email: dmonaco@ca.cjis20.org, jmetcalfe@ca.cjis20.org, hhayes@ca.cjis20.org
RE:
CANCELLATION of unlawful hearing in disposed wrongful foreclosure case 09-6016-CA
“BANKUNITED” v. FRANKLIN-PRESCOTT, JENNIFER
DISPOSED CASE NO. 09-6016-CA; DISPOSITION JUDGE HAYES, HUGH D.
UNAUTHORIZED “02/22/11 HEARING” [AMENDED TO 02/14/11 & CANCELLED]
2
“Only hearings for Summary and Default Judgments may be scheduled on the
Tuesday, Wednesday and Thursday dockets before Judge Daniel Monaco. These
timeslots will be in 5 minute increments. (DO NOT schedule any other kind of
motions on this docket.) All motions other than MSJ and DJ will be cancelled by
Court Administration. No additional motions will be heard with the
Summary/Default Judgments before Judge Monaco.”
See “OFFICE POLICIES AND PROCEDURE, Senior Judge Foreclosure, Collier County
Clerk of Court.
MANDATORY CANCELLATION FOR LACK OF SERVICE IN DISPOSED ACTION
“A party/attorney scheduling a hearing must concurrently notice the matter in
conformance with the Florida Rules of Civil Procedure and ensure timely notice is
served on all pro-se parties and counsel of record in advance of the hearing. The
original notice must be timely filed with the Clerk of Court.” Id.
11. Here accordingly, “BankUnited” was not entitled to sue nor to any hearing and did not serve
any “timely notice” of hearing on Jennifer Franklin-Prescott as also conclusively evidenced
by the Clerk’s 02/18/2011 Docket.
UNAUTHORIZED ATTORNEY “ANDREW LEE FIVECOAT”, ESQ.
12. “Andrew Lee Fivecoat” had no authority to schedule any hearing in said disposed wrongful
foreclosure action. Here, Fivecoat knew and/or fraudulently concealed that “BankUnited”
had no standing and that the exhibits on file conclusively evidenced that “BankUnited” was
not identified as “lender” and was not any note holder and/or owner.
PRIMA FACIE FRIVOLITY IN THE ABSENCE OF ANY “BANKUNITED” NOTE
13. Professor Stephen Gillers, an expert in legal ethics at New York University, believes that the
involvement of lawyers in questionable transactions could damage the overall reputation of
the legal profession, “which does not fare well in public opinion” throughout history:
“When the consequence of a lawyer plying his trade is the loss of someone’s home,
and it turns out there are documents being given to the courts that have no basis in
reality, the profession gets a very big black eye,” Gillers said.
See New York Times, “Judges Berate Bank Lawyers in Foreclosures”.
FIVECOAT CONCEALED PRIMA FACIE NULLITY OF PURPORTED NOTE
14. Here, Fivecoat knew that the complaint in this disposed action had been “incredible,
outrageous, ludicrous and disingenuous”, because no note had been properly executed and
no note and/or instrument “transferred” from bankrupt and lawfully seized “BankUnited,
FSB”, to the “F.D.I.C.”, and/or “BankUnited”. Disgraced founder of defunct “BankUnited,
FSB”, Alfred Camner, Esq., and/or Camner Lipsitz, PA, had filed the facially frivolous
complaint on 07/09/2009.
A. L. FIVECOAT, ESQ., LACKS AUTHORITY
15. Here, A. L. Fivecoat has lacked any authority to appear. Fivecoat knew/concealed that
bankrupt “BankUnited, FSB” is not any party to this disposed action.
3
MANDATORY CANCELLATION OF HEARING
4
(Fla. 1952), cert. denied, 344 U.S. 878, 73 S. Ct. 165, 97 L.Ed. 680 (1952). Here,
“BankUnited” never had any standing in the first place and cannot frivolously “re-litigate”
its prima facie lack of standing.
21. In dealing with the identities of the parties, estoppel requires that the “real parties in interest”
be identical. See Seaboard Coast Line Railroad Company v. Cox, 338 So.2d 190 (Fla. 1976).
The well-established rule in Florida has been and continues to be that estoppel may be
asserted when the identical issue has been litigated between the same parties or their privies.
See Trucking Employees of North Jersey Welfare Fund, Inc. v. Romano, 450 So.2d 843 - 45
(Fla. 1984). Here the file and evidence in this disposed action had conclusively evidenced
that “BankUnited” was not any “real party in interest”
BINDING PRECEDENT: BAC FUNDING CONSORTIUM SUPPORTED DISPOSITION
22. The Second District confronted a similar situation in BAC Funding Consortium, Inc.
ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936 (Fla. 2d DCA 2010), when the trial court had
granted the alleged assignee U.S. Bank's motion for summary judgment. That court reversed
because, inter alia, "[t]he incomplete, unsigned, and unauthenticated assignment attached as
an exhibit to U.S. Bank's response to BAC's motion to dismiss did not constitute admissible
evidence establishing U.S. Bank's standing to foreclose the note and mortgage." Id. at 939.
Said Appellate Court in BAC Funding Consortium, properly noted that U.S. Bank was
"required to prove that it validly held the note and mortgage it sought to foreclose." Id.
RECORD LACK OF ANY ADMISSIBLE EVIDENCE:
“BANKUNITED” WAS NOT ANY OWNER AND HAD NO RIGHT TO SUE PRESCOTT
23. In the instant case, the purported note was, e.g., not properly executed, not assigned, the
falsely pretended assignment not recorded, and the endorsement in blank was unsigned and
unauthenticated, creating genuine issues of material fact as to whether “BankUnited” was
ever the lawful owner and holder of the purported note and/or mortgage. As
in BAC Funding Consortium, here there were no supporting affidavits or deposition
testimony in the record to establish that “BankUnited” validly owned and held the improperly
executed note and mortgage, no evidence of an assignment to “BankUnited”, no proof of
purchase of the debt nor any other evidence of an effective transfer to “BankUnited”.
AUTOMATICALLY DISSOLVED “LIS PENDENS”
24. Here, the improper and unauthorized lis pendens was automatically dissolved upon the
disposition of foreclosure. See Rule 1.420(f), Fla. R. Civ. P. (2010). The validity of a notice
of lis pendens is one year from filing. § 48.23(2), Fla. Stat. (2010).
25. In this disposed action, the purported “plaintiff” sought to re-establish the missing note in
“COUNT I (Reestablishment of Lost Instruments)” of the complaint (see p. 2 of 8). Franklin-
Prescott had filed her answer(s) and motions to dismiss and proven plaintiff’s lack of
standing, which was one of the ultimate affirmative defenses. Here, the record reflected
that plaintiff could not possibly re-establish the note and that no authentic note could possibly
be proven under the Evidence Code.
FRAUD ON THE COURT & RECORD EVDENCE THEREOF
26. Here however, alleged ‘plaintiff(s)’, BankUnited & BankUnited, FSB, fraudulently asserted:
“that all conditions to the institutions of this action have occurred, been performed or
excused …”
5
27. Prior to the 08/12/2010 disposition, plaintiff had failed to re-establish and could not have
possibly re-established the destroyed and/or lost note/mortgage. Here, the time and manner
of the loss/destruction had been uinknown. See UCC §§ 3-309; 3-305.
FILE & DOCKET SHOWED FRAUD EVIDENCE & DEMAND IN DISPOSED ACTION
6
FRAUD - INVESTIGATIONS BY THE FLORIDA ATTORNEY GENERAL
31. Foreclosure mills like “Albertelli Law” have been under investigation, which evidenced so-
called “robo signing” of fraudulent documents and/or affidavits. See, e.g., Office of the
Florida Attorney General, Dept. of Legal Affairs, AG # L10-3-1145, IN RE: Investigation of
Law Offices of David J. Stern, P.A..
“ROBO-SIGNING” OF FRAUDULENT AFFIDAVITS – NO FILE REVIEW
32. In this disposed wrongful foreclosure action, Ashley Simon, Esq., Florida Bar 64472, stated
under oath that she “had not reviewed the actual file in this [disposed] case.” See prima facie
fraudulent “Affidavit as to reasonable attorneys fees”; 11/10/2010 “Notice of Filing”.
33. Employees of “foreclosure mills” in Florida [e.g. Jeffrey Stephan; Angela Nolan, Cheryl
Samon] admitted under oath that they signed hundreds of affidavits a day to process pending
foreclosures without actually having read or checked the documents. It later came to light
that said employees were not alone, and in 23 states that require a court to approve a
foreclosure, thousands of foreclosures are now potentially under question. Robo-signing and
similar practices are unlawful and egregious.
“FORECLOSURE GATE”
34. The lender, formerly known as GMAC, admitted that employees signed thousands of
foreclosure documents without reading them, a practice dubbed “robo-signing”.
35. In this disposed action, Jennifer Franklin-Prescott has been defending against, e.g., “robo
signing”, “BankUnited” fraud, and the cover-up by foreclosure mill “Albertelli Law”.
“BANKUNITED’S” FAILURE TO STATE A CAUSE OF ACTION
36. In this disposed action, “BankUnited” had failed to show they it had the contractual right to
enforce the alleged note, which had never been properly executed. Accordingly, any hearing
under these circumstances would be unlawful and unauthorized. The allegations by
“BankUnited” have been facially frivolous and unsupported. The Exhibits on file did not
identify “BankUnited” as any note holder and/or owner. Here, the alleged note was never
properly executed.
7
ILLEGALITY OF “ROCKET DOCKET”
37. Here after said 08/12/2010 disposition and in the absence of any note and standing,
“BankUnited” was not entitled to “5 minute increments” of a “rocket docket”, because
“BankUnited’s” fraud on the Court is illegal. In this disposed Case, “BankUnited” and/or
Attorney Fivecoat are playing “another round of [illegal] games of paper”.
38. Cases like this have led experts like Katherine Porter, visiting professor of law at Harvard
University, to seriously question the mortgage industry:
“The foreclosures and the whole loss of wealth are going to deepen the
disappointment and distrust in financial institutions to follow the rules of law," Porter
said, "and be fair when dealing with the little guy.”
PUBLICATIONS AS TO DISPOSED WRONGFUL FORECLOSURE ACTION
39. The communications with the Court and Officers are published at, e.g., www.scribd.com,
www.YouTube.com. See www.google.com.
Respectfully,
ATTACHMENTS
Docket et al.
CC:
Florida Bar
New York Times
June M. Clarkson, Esq., Theresa B. Edwards, Esq.
Mark R. Briesmeister, Financial Investigator
Office of the Florida Attorney General
8
5. “BankUnited, FSB” was not any “plaintiff” in this disposed action.
6. The electronic docket in this disposed action had erroneously listed “BankUnited, FSB” as a
7. In this disposed action, “Plaintiff” “BankUnited” had deceptively alleged “that all conditions
“General Allegations”).
8. The “subject mortgage referenced” in the wrongful complaint identified “BankUnited, FSB”
9. The “logo” of bankrupt and lawfully seized “BankUnited, FSB” included a palm tree and
“BANKUNITED”.
10. “Plaintiff BankUnited” had falsely alleged that “The plaintiff [is] named in the attached
complaint [“BankUnited”] is the creditor to whom the debt is owed … The undersigned
attorney represents the interest of the plaintiff.” See “Notice Required by the Debt Collection
11. “Plaintiff BankUnited” was not any “creditor” in the disposed wrongful action.
12. Jennifer Franklin-Prescott did not owe any debt to “plaintiff BankUnited” pursuant to the
13. Undersigned “Camner Lipsitz, PA”, and/or founder of bankrupt and defunct “BankUnited,
FSB”, Alfred Camner, Esq., “represented the interest of the plaintiff [BankUnited]”.
14. “BankUnited” had fraudulently alleged in the Complaint (¶ 16, Count II) that “plaintiff”
15. The purported note and/or mortgage within the four corners of the disposed complaint did
2
16. The purported note/mortgage identified “BankUnited, FSB” as a “lender”.
17. No admissible evidence of any obligation to pay money to “BankUnited” existed on the
record of this disposed wrongful action, and Jennifer Franklin-Prescott was not obligated to
18. “Plaintiff BankUnited’s” purported “01/12/2011 Affidavits as to amounts due and attorneys
fees” were fraudulent and not founded on any note and/or mortgage identifying
“BankUnited” as a “lender”.
19. An affidavit that is not executed in accordance with the requirements of Ch. 92, Florida
21. “BankUnited” has had no right to enforce the falsely pretended mortgage/note.
25. “BankUnited” could not have possibly been entitled to any summary disposition and/or
26. “Pedro Luis Licourt” is not any known party to the disposed action, Case # 09-6016-CA
27. The purported “Amended Motion for Summary Judgment and for Attorney Fees against
Pedro Luis Licourt” was erroneous, irrational, and irrelevant to said disposed action.
28. Said action was disposed, because here no note and/or mortgage had been “transferred”” to
“BankUnited”.
3
29. The record and/or docket of this disposed action conclusively evidenced the “genuine issues
of material fact”, which prohibited any summary disposition after the 08/12/2011
disposition.
30. The “02/08/2011 “Amended Mtoin for Summary Judgment and for Attorney Fees against
Pedro Luis Lizourt” was erroneous, irrational, and irrelevant to said disposed action.
31. There was no service of notice of 02/14/2011 hearing upon Jennifer Franklin-Prescott nor
32. There was no service of notice of 02/22/2011 hearing upon Franklin-Prescott, and the
33. In this disposed action, the purported “Defendant’s motion to dismiss/motion to enjoin” was
34. Jennifer Franklin-Prescott was never properly served either by personal service of process or
by any other service of process in strict compliance with Chapters 48 and 49, Florida
Statutes.
35. “BankUnited” failed to conduct a diligent search in strict compliance with the Florida
36. The record established that the falsely alleged service by publication was void.
37. Florida’s Statutes governing service of process are to be strictly construed to assure that
38. Any judgment against a defendant based upon improper service by publication would have
4
2/18/2011 Public Inquiry
Home / Records Search / Court Records / Public Inquiry / Search Results - A LL / C ase - 112009C A0060160001XX
(FAX) NO TIC E O F O PPO SITIO N & O PPO SITIO N EVIDENC E/FR AUD EVIDENC E &
UNAVAILABILITY IN DISPO SED AC TIO N/NO TIFIC ATIO N O F C O URT & C LER K ET AL
02/07/2011 NO TIC E
O F FR AUDULENT AFFIDAVITS BY JASO N M TAR O KH ESQ & O F UNLAW FUL/
UNAUTHO R IZED AC T BY ALBER TELLI LAW (UNSIGNED)
02/08/2011 NO TIC E O F HEARING
02/22/11 @10:00A.M., DEFENDANT'S MO TIO N TO DISMISS/MO TIO N TO ENJO IN
02/08/2011 AMENDED NO TIC E O F HEAR ING
02/14/11 @3:30P M AMENDED MO TIO NFO R SUMMAR Y JUDGMENT AND FO R
apps.collierclerk.com/…/Case.aspx?UC… 1/2
2/18/2011 Public Inquiry
02/14/11 @3:30P.M. AMENDED MO TIO NFO R SUMMAR Y JUDGMENT AND FO R
ATTO R NEY FEES AGAINST PEDR O LUIS LIC O UR T
02/08/2011 AMENDED
MTO IN FO R SUMMAR Y JUDGMENT AND FO R ATTO R NEY FEES AGAINST P EDR O LUIS
LIC O UR T
02/09/2011 DEMAND
O F FO R ENSIC R EVIEW & AUDIT AND NO TIC E O F FR AUDULENT AND/O R INAC C UR ATE
AC C O UNTING IN DISPO SED AC TIO N
W e dne sday night is re gular m a inte nance tim e on our se rve rs; as a re sult brie f o utage s m ay o ccur.
W e apologize in advance for any inconve nie nce.
apps.collierclerk.com/…/Case.aspx?UC… 2/2
2/18/2011 Public Inquiry
Home / Records Search / Court Records / Public Inquiry / Search Results - A LL / C ase - 112009C A0060160001XX
W e dne sday night is re gular m a inte nance tim e on our se rve rs; as a re sult brie f o utage s m ay o ccur.
W e apologize in advance for any inconve nie nce.
apps.collierclerk.com/…/Case.aspx?UC… 1/1
2/17/2011 Public Inquiry
Home / Records Search / Court Records / Public Inquiry / Search Results - A LL / C ase - 112009C A0060160001XX
apps.collierclerk.com/…/Case.aspx?UC… 2/3
MANDATORY CANCELLATION NOTICE AS FILED ON 02/21/2011