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Motion to Strike Affidavits -Matt Weidner

Motion to Strike Affidavits -Matt Weidner

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Published by: winstons2311 on Aug 31, 2010
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09/04/2014

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IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT,IN AND FOR PINELLAS COUNTY, FLORIDA
 
CIVIL DIVISION
 
HSBC BANK, USA, NATIONAL ASSOCATION, CASE NO.52-2009-CA-005696-WS
 
AS TRUSTEE FOR THE ACE SECURITIESCORPORATION HOME EQUITY LOAN TRUST,SERIES 2005-AG1, ASSET BACKED PASS-THROUGH CERTIFICATESPlaintiff,
 
v.ANNABEL E. MONTGOMERY, et al,
 
Defendant(s).
 
 _________________________________________/
 
DEFENDANT¶S MOTION TO STRIKE AFFIDAVIT OF CHRISTOPHER SPRADLINGAND FOR ATTORNEY¶S FEES AND COSTSCOMES NOW
, the Defendant ANNABEL E. MONTGOMERY (hereinafter ³Defendant´), by and through the undersigned counsel MATTHEW D. WEIDNER, andrespectfully MOTIONS THIS COURT TO STRIKE AFFIDAVIT OF CHRISTOPHER SPADLING AND FOR ATTORNEY¶S FEES AND COSTS, pursuant to Fla. R. Civ. Pro. 1.510,and in support thereof states as follows:
FACTS
1. This is an action for foreclosure of real property owned by the Defendant.2. The named plaintiff in this case is HSBC BANK, USA, NATIONAL ASSOCATION,AS TRUSTEE FOR THE ACE SECURITIES CORPORATION HOME EQUITY TRUST,SERIES 2005-AG1, ASSET BACKED PASS-THROUGH CERTIFICATE (hereinafter ³Plaintiff´).3. On February 2, 2010 Plaintiff, by and through its counsel Florida Default Law Group,
 
 P.L. (hereinafter ³Florida Default Law Group´), gave Notice of Filing of Affidavit as toAmounts Due and Owing and the accompanying Affidavit (hereinafter ³Affidavit´).4. The Affiant of the above-mention Affidavit was identified as CHRISTOPHER SPRADLING (hereinafter ³Spradling´). Spradling identified himself as a ³ForeclosureManager´ for LITTON LOAN SERVICING, LP (hereinafter ³Litton´). Litton, in turn, wasidentified as ³the servicer of the loan«[Litton] is responsible for the collection of this loantransaction and pursuit of any delinquency in payments.´
1
 5. Spradling, based upon his personal knowledge, averred in the Affidavit that: (1) thePlaintiff or its assigns was owed a total of $408,809.30; (2) the Plaintiff was entitled to enforcethe Note and Mortgage; and (3) Plaintiff was entitled to a judgment as a matter of law.
2
TheAffidavit does not contain any mention as to who owes the Plaintiff the sum alleged save for onesentences line which cryptically state ³[s]pecifically, I have personal knowledge of the factsregarding the sums which are due and owing to Plaintiff or its assigns pursuant to the Note andMortgage which is the subject matter of the lawsuit´ and a second which states ³I am familiar with the books of account«concerning the transactions alleged in the Complaint.´
3
 
 Emphasisadded 
.6. Nowhere in the Affidavit was either Litton or Spradling identified as either the Plaintiff or the Plaintiff¶s authorized agent.7. Upon information and belief, Litton is simply a ³middleman´ of sorts who is responsiblefor the transfer of funds between the various assignees of the underlying Mortgage and Note and
1
 
See
Affidavit As to Amounts Due and Owing, pg. 1.
 
2
 
Id, pgs. 1, 2.
 
3
 
Id.
 
 
 has no knowledge of the underlying transactions between the Plaintiff and Defendant.8. Upon information and belief, Spradling, as employee of Litton and not the Plaintiff, hasno knowledge of the underlying transactions between the Plaintiff and Defendant.
LEGAL REASONING IN SUPPORT OF MOTIONI. Plaintiff Failed to Attach Documents Referred to in the Affidavita. Failure to Attach Documents Violates Fla. Stat. §90.901 (1989)
Florida Statue §90.901 (1989) states, in pertinent part, that ³[a]uthentication or identification of evidence is required as a condition precedent to its admissibility.´ The failureto authenticate documents referred to in affidavits renders the affiant incompetent to testify as tothe matters referred to in the affidavit.
See
Fla. R. Civ. Pro. 1.510(e) (which reads, in pertinent part, that ³affidavits«shall show affirmatively that the affiant is competent to testify to thematters stated therein´); Zoda v. Hedden, 596 So. 2d 1225, 1226 (Fla. 2d DCA 1992) (holding,in part, that failure to attach certified copies of public records rendered affiant, who was not acustodian of said records, incompetent to testify to the matters stated in his affidavit as affiantwas unable to authenticate the documents referred to therein.)Here, Spradling affirmatively states in the Affidavit that he is ³familiar with the books of account and have examined all books, records, and documents kept by LITTON LOANSERVICING, LP concerning the transactions alleged in the Complaint.´
4
Furthermore,Spradling averred that the ³Plaintiff or its assigns, is owed«$408,809.30.´
5
Nevertheless,Spradling has failed to attach any of the books, records or documents referred to in the Affidavit.In addition, Spradling does not meet the definition of ³custodian,´ which is ³a person or 
4
 
See
Affidavit As to Amounts Due and Owing, pg. 1.
 
5
 
Id, pg. 2.
 

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