IN THE CIRCUIT COURT OF THE

FOURTH JUDICIAL CIRCUIT, IN AND FOR

DUVAL COUNTY, FLORIDA

CASE NUMBER: 16-2006-CA-001265-XXXX-MA

Div. CV-D
HSBC BANK USA, NATIONAL
ASSOCIATION, AS TRUSTEE FOR
HOME EQUITY LOAN TRUST SERIES
AE 2005-HE5, Plaintiff,
vs.

MARILYN G. HARLEY, ET AL., Defendants.

DEFENDANT’S MEMORANDUM IN OPPOSITION TO SUMMARY JUDGMENT

Comes now the defendant and submits this memorandum in opposition to plaintiff’s
motion for summary judgment and for attorney’
1. Summary judgment cannot be granted unless the pleadings, depositions, answers to
interrogatories, and admissions on file together with affidavits, if any, conclusively show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law. Fla. R. Civ. P. 1.510(c)
2. Summary Judgment is improper if the record raises even the slightest doubt that an
issue of material fact exists. Williams v. Lake City, 62 So.2d 732,733 (Fla. 1953); Connell v.
Sledge, 306 So.2d 194,196 (Fla. 1st DCA 1975)
3. The burden is upon the party moving for summary judgment to establish that there is
no issue of material fact and that he is entitled to a judgment as a matter of law. Id. Until the
moving party conclusively establishes there is no genuine issue of material fact, the legal
sufficiency of the evidence on the merits should not be addressed. Dade County Sch. Bd. v.
Radio Station WQBA, 731 So.2d 638,643 (Fla.1999)
4. The law is well settled in Florida that when considering a motion for Summary
Judgment the Court must draw every possible inference in favor of the party against whom
Summary Judgment is sought. Wills v. Sears, Roebuck & Co., 351 So.2d 29, 30 (Fla. 1977);
Hance v. The Dime savings Bank of New York, FSB, 678 So.2d 11 (Fla. 1st DCA 1996) citing
Moore v. Morris, 475 So.2d 666 (Fla. 1985)
5. Summary Judgment should not be granted unless the facts are so crystallized that
nothing remains but a question of law. Shaffran v. Holness, 93 So.2d 94,97-98 (Fla. 1957) If the
evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable
inferences or if it intends to prove the issues, it should be submitted to the jury as a question of
fact to be determined by it. Williams, 62 So.2d at 733
6. Summary Judgment is particularly unsuitable in those cases where the facts and
circumstance indicate a possibility of an estoppel or a waiver or an equitable defense. Cross v.
Federal National Mortgage Association, 359 So.2d 464,465 (Fla. 4th D.C.A. 1978); 22 Fla. Jur.
2d Estoppel and Waiver, § 9; Macina v. Magurno, 100 So.2d 369, 373 (Fla. 1958)
7. A party should not be deprived of his or her full day in court by summary proceedings
if the records indicate that he or she has a bona fide potential cause of action or defense. Monroe
v. Appelton, 419 So.2d 356,357 (Fla. 2nd DCA 1982) Great caution should be exercised in any
summary judgment proceeding denying the litigant ample opportunity to demonstrate that he is
entitled to the benefit of a trial. Hance, supra, citing Stephens v. Dichtenmueller, 216 So.2d 448
(Fla. 1968)
8. Where the non-moving party has raised affirmative defenses as in this case, it is
incumbent upon the moving party to either disprove those affirmative defenses or establish their
legal insufficiency. Frost v. Regions Bank, No. 4D08-3168 (Fla. 4th DCA 2009); Knight Energy
Services, Inc. v. Amoco Oil Co., 660 So.2d 786 (Fla. 4th DCA 1995), Federal Sav. & Loan Ins.
Corp. v. Two Rivers Assoc., Inc., 880 F.2d 1267,1272 (11th Cir. 1989)
9. Plaintiff is not entitled to summary judgment in this action because there are multiple
facts in dispute and additionally the plaintiff is not entitled to judgment as a matter of law.
Family Bank v. Able Realty of America Corp., 702 So.2d 1322 (Fla. 4th DCA 1998) (“court in
its discretion may refuse to grant prayer for foreclosure of mortgage for equitable
reasons…”mortgage foreclosure is an equitable action and thus equitable defenses are
appropriate”)
10. This court is obliged to apply the controlling law and to maintain consistency with
other judicial results to avoid confusion and problems with application of the law in determining
the plaintiff’s motion for summary judgment.
11. In the present case the Defendant, in her answer and affirmative defenses clearly
presents the court with disputed issues of material fact left unresolved by Plaintiff’s filings as set
out below and in the defendant’s affidavit in opposition to plaintiff’s motion for summary
judgment and in defendant’s previous filings with the court, all of which require the court to
deny the plaintiff’s motion for summary final judgment of foreclosure. Florida law denies a
plaintiff in this circumstance the right to summary judgment and prevents the court from granting
a summary judgment.

PLAINTIFF HAS FAILED TO PRESENT ADMISSIBLE EVIDENCE OF STANDING

12. In Florida, in order to maintain a residential mortgage foreclosure action the action
must be by the owner and holder of the mortgage and the note at the commencement of the
action; must have a sufficient stake in the outcome of the litigation and must be recognized in the
law as being a real party in interest. Your Construction Center, Inc. v. Gross, 316 So.2d 596
(Fla. 4th DCA 1975), Greenwald v. Triple D Properties, Inc., 424 So.2d 185, 187 (Fla. 4th DCA
1983); Kumar Corp. v. Nopal Lines, Ltd,et al, 462 So.2d 1178 (Fla. 3d DCA 1985).
13. A plaintiff’s lack of standing at the commencement of a case is a fault that cannot be
cured by gaining standing after the case has been filed. Progressive Express Ins. Co. v. McGrath
Community Chiropractic, 913 So. 2d 1281,1285 (Fla. 2d DCA 2005). See also, Maynard v. The
Florida Board of Education, 2008 Fla. App. LEXIS 5890; 33 Fla. L. Weekly D 1110 (Fla. 2nd
DCA 2008) (Standing may be raised even after a verdict is entered as long as it is preserved at
the trial court)
14. Parties may not establish the right to maintain an action retroactively by acquiring
standing after the fact. If the party was without standing when the suit was filed then a new
lawsuit must be filed. Progressive, 913 So. 2d at 1285 (citing Jeff-Ray Corp. v. Jacobson, 566
So. 2d 885, 886 (Fla. 4th DCA 1990) (finding that "the assignee of a mortgage could not
maintain the mortgage foreclosure action because the assignment was dated four months after the
action was filed, if the plaintiff wished to proceed on the assignment, it must file a new
complaint.")
15. The Defendant, in her answer and affirmative defenses clearly presents the court with
disputed issues of material fact as to whether the Plaintiff has standing to bring the foreclosure
action against Defendant and the plaintiff has failed to file any paper or affidavit with the court
that presents the court with admissible evidence to refute the defendant’s factual claims that:
a. Plaintiff is not the real party in interest or the holder of the note;

b. the mortgage was not assigned to the plaintiff prior to the filing of this foreclosure
action;
 c. the January 30, 2006 assignment of mortgage attached to the plaintiff’s amended
complaint states that the assignment is of the mortgage and the promissory note that are the
subject of this foreclosure action, but the plaintiff has failed to provide any admissible evidence
to this court that identifies or establishes how Mortgage Electronic Registration Systems, Inc.
(“MERS”) had any right or legal ability to transfer any interest in the subject promissory note;

d. the January 30, 2006 assignment attached to the plaintiff’s amended complaint that
purportedly assigns the mortgage and the promissory note from MERS in its corporate capacity
as owner and not “as nominee”is in “c/o Wells Fargo Bank, N.A.” while the mortgage attached
to the complaint identifies the owner of the mortgage as “Trimerica Mortgage Corporation dba
Avaris Capital”, with MERS as a nominee for said lender;

e. the mortgage in the name of Trimerica Mortgage Corporation dba Avaris Capital
contradicts the assignment submitted by the plaintiff and further contradicts and disputes the
plaintiff’s allegations of standing and real party in interest;
f. the plaintiff’s factual claims in its amended complaint that the “Plaintiff owns and
holds the Note and Mortgage” is directly contradicted and disputed by the plaintiff’s admissions
in its amended complaint that the “plaintiff is not presently in possession of the original note and
mortgage”; and

g. the January 30, 2006 assignment from an unrelated entity (from MERS as owner in
“c/o Wells Fargo Bank, N.A.”) attached to the Plaintiff’s amended complaint presents issues of
material fact in dispute and such assignment is legally defective to transfer ownership or
assignment of the subject note or mortgage to the plaintiff.

a. the December 19, 2005 notice fails to specify the action required by me to cure the
default within 30 days which was to pay the unpaid amounts due as of the date of the notice;
b. instead, the December 19, 2005 notice demands that I pay by January 18, 2006,
additional money in the sum of $455.58 (to cover my January 2006 mortgage payment not yet
due) to cure;
c. the notice misinforms me that I can bring a court action to refute the existence of a
default when paragraph 22 of my mortgage says that I am entitled to a notice telling me that I
have the right to assert the non-existence of a default in the foreclosure proceeding.

The defendant has presented a dispute of fact based on the plaintiff’s own pleadings and
documents filed in this action that the lack of a timely assignment of the mortgage that predates
the commencement of this foreclosure action renders the plaintiff’s complaint fatally defective
and leaves the plaintiff without standing or real-party in interest status to pursue this foreclosure
and also leaves this court without subject matter jurisdiction.
 FAILURE OF CONTRACTUAL CONDITION PRECEDENT–NO NOTICE OF DEFAULT

16. The December 19, 2005 notice attached to the plaintiff’s filings fails to meet the
requirements of paragraph 22 of the mortgage because the notice fails to specify the action
required to cure the default within 30 days which was to pay the unpaid amounts due as of the
date of the notice. Instead, the December 19, 2005 notice erroneously demands that in order for
the defendant to cure the default and avoid the acceleration that she all monies due through
December, 2005 plus additional money not yet due in the sum of $455.58 to cover an anticipated
January 2006 mortgage payment.
17. Another issue of material fact is clearly in dispute as to whether the plaintiff’s
December 19, 2005 notice of default fails to comply with the mortgage because said notice
misinforms the defendant that she can bring a court action to refute the existence of a default
when paragraph 22 of the subject mortgage clearly provides that the plaintiff must provide
defendant with a notice advising her that she has the right to assert the non-existence of a default
in the foreclosure proceeding.
FAILURE OF 12 USC 1701x(c)(5) PRE FORECLOSURE HOMEOWNERSHIP COUNSELING NOTICE

18. Defendant asserts in her affirmative defenses that Plaintiff failed to comply with the
preforeclosure prevention notice requirement imposed by the National Housing Act, 12 U.S.C.
1701x(c)(5) which requires the plaintiff and all private lenders servicing non-federally insured
home loans to advise borrowers of the home ownership counseling the Plaintiff provides.
19. The Plaintiff failed to refute or otherwise resolve this disputed issue of material fact
in any papers or affidavits filed with this court.
20. 12 USC 1701x(c)(5) imposes a specific statutory obligation on all creditors across the
United States who service conventional loans, (non federally-insured home loans) that requires the
creditor to send a specific notice about access and availability of homeownership counseling to defaulting
homeowners within 45 days of a home loan payment default. The creditor is obliged to advise the
homeowner of any homeownership counseling offered by the servicer of the loan and/or information
about how to access HUD homeownership counseling.
21. The issue before the court in this action on plaintiff’s motion for summary judgment is
whether the creditor’s failure to comply with the federal statutory notice obligation before instituting this
foreclosure action can be grounds for the court to equitably deny the lender the remedy of a foreclosure.
22. 12 USC 1701x(c)(5) was enacted 21 years ago as part of the Housing and Community
Development Act of 1987. This statute was recently extended to require creditors to send another very
specific pre-foreclosure notice directed to homeowners in the military service of this country.
23. In this action, the relevant part of the federal statute provides:
12 USC 1701x. Assistance with respect to housing for low-and moderate income families
(c)(5): Notification of availability of homeownership counseling.
(A) Notification of availability of homeownership counseling.
(i) Requirement. Except as provided in subparagraph C, the creditor of
a loan…shall provide notice under clause (ii) to (I) any eligible
homeowner who fails to pay any amount by the date the amount is due
under a home loan,…

(ii) Content. Notification under this subparagraph shall—

(I) notify the homeowner…of the availability of any homeownership

counseling offered by the creditor…;

(III) notify the homeowner…of the availability of homeownership

counseling provided by nonprofit organizations approved by
the Secretary and experienced in the provision of
homeownership counseling, or provide the toll-free
telephone number described in subparagraph (D)(i);…

(B) Deadline for notification. The notification required in subparagraph (A) shall
be made—

(i) in a manner approved by the Secretary; and

(ii) before the expiration of the 45-day period beginning on the date on
Which the failure referred to in such subparagraph occurs.

(6) Definitions. For purposes of this subsection:

(A) The term “creditor” means a person or entity that is servicing a home loan on behalf of
itself or another person or entity.

(B) The term “eligible homeowner” means a homeowner eligible for counseling under
paragraph 4.

(C) The term “home loan” means a loan secured by a mortgage or lien on residential property.

(D) The term “homeowner” means a person who is obligated under a home loan.

(E) The term “residential property” means a 1-family residence,…

(7) Regulations. The Secretary shall issue any regulations that are necessary to carry out this subsection.

Under the terms of the statute, an “eligible homeowner” is one who is eligible for counseling as
follows:
 12 USC 1701x(c)(4) Eligibility for counseling. A homeowner shall be eligible for
homeownership counseling under this subsection if—

(A) the home is secured by property that is the principal residence…of the
homeowner;

(B) the home is not assisted under title V of the Housing Act of 1949; and (emphasis
added)

(C) the homeowner is, or is expected to be, unable to make payments,

correct a home loan delinquency within a reasonable time, or resume
full home loan payments due to a reduction in the income of the
homeowner because of—
(i) an involuntary loss of, or reduction in, the employment of
the homeowner, the self-employment of the homeowner,
or income from the pursuit of the occupation of the
homeowner; or
(ii) any similar loss or reduction experienced by any person who
contributes to the income of the homeowner.

24. The secretary of HUD, in a question and answer supplement “ published in order to respond
to creditor inquiries and to clarify creditor responsibilities” under the statute. 55 FR 2416 (01/24/1990)
states: “We note that if a creditor’s compliance…is challenged in court, the ultimate determination of the
adequacy of the creditor’s notification and the legal consequences of any noncompliance will be made
by the court.” (emphasis added)
The question and answer supplement advises creditors that:
1. The “notification requirement applies to all home loans except those assisted by the Farmers
Home Administration…Thus, both conventional mortgages and loans, and those insured by HUD or
guaranteed by the Department of Veterans Affairs, are subject to section 169.” (Section 169 is a reference
to the section of the Housing and Community Development Act that enacted 12 USC 1701x(c)(5))

2. “[S]ince the purpose of the notice is to help the homeowner avert foreclosure, it should be
sent soon enough to enable the homeowner to benefit from the counseling. HUD recommends that the
notice be included in the creditor’s first communication with the homeowner regarding the delinquency.”

3. “A notice must be sent to every homeowner every time the homeowner becomes delinquent.
If the homeowner brings the loan current and becomes delinquent again, another notice must be sent.”

4. “The notice must contain information on any counseling provided by the creditor and either
the name, address and telephone number of the HUD-approved counseling agencies near the homeowner
or a cost-free telephone number at the creditor’s office where the homeowner can obtain this
information…”

5. HUD does not supply a form. “It is HUD’s view that sufficient information has been provided
on the section 169 notice requirement to enable creditors to prepare the notice.

6. “Creditors may prefer to send the notice to all delinquent homeowners, rather than attempt to
determine the cause of each delinquency.”

7. “The notice is not required (on) property sold under a land sales contract…until the contract is
completed…”

8. “The statute does not require any creditor to provide counseling.”

9. If a creditor does provide homeownership counseling, the creditor still has to “notify the
delinquent homeowner of the availability of homeownership counseling by HUD-approved counselors or
by the Department of Veterans Affairs…”

25. HUD published an advisory on the notice requirement of the statute which states: 54 “[T]he
notice requirements …apply virtually to all mortgagees…” and that “noncompliance with the law’s
requirements could be an actionable event that could affect a mortgagee’s ability to carry out foreclosure
in a timely manner…HUD regards the obligations imposed on creditors by the new law as self-executing:
that is, the law speaks directly to creditors, imposing and obligation upon any and all creditors to notify
any eligible homeowner counseling, whenever a home loan is “delinquent”. 54 Fed. Reg. 20964-65 (May
15, 1989)
26. The record in this action fails to establish that Plaintiff has given the required pre-foreclosure
counseling notice within the required 45 days from the failure to pay. Whether Defendant received the
12 USC 1701x(c)(5) preforeclosure counseling notice raises a factual dispute based on defendant’s
equitable defenses sufficient to deny Plaintiff’s Motion for Summary Judgment.
27. In a Florida mortgage foreclosure action in which a borrower similarly argued that the
Plaintiff failed to comply with a federally-mandated notice provision, the court denied the Plaintiff’s
motion for judgment of foreclosure based on Plaintiff’s failure to provide the required notice to borrower.
In U.S. v. Trimble, 86 F.R.D. 435 (S.D. Fla. 1980), the court held that the failure of the mortgagee to
comply with the notice requirement contained in the federal regulation is a valid defense to a mortgage
foreclosure action. Trimble dealt with a Farmers Home Administration loan, but the holding of that case
is premised on the same principle-- compliance with applicable federal laws can be upheld as equitable
defense to deny a creditor the judicial remedy of foreclosure. Defendant has properly raised an equitable
defense to the plaintiff’s claim in this action.
TRUTH-IN-LENDING VIOLATIONS

28. The Plaintiff does not dispute that for purposes of the defendant’s affirmative
defenses that it is a holder-in-due course and therefore subject to all claims Defendant has
against the Plaintiff’s predecessor in interest involving the subject transaction;
29. The defendant asserts that the plaintiff engaged in unfair and/or deceptive acts or
practices in violation of the federal Truth In Lending Act (TILA), 15 U.S.C. 1601, et. seq., and
its implementing Regulation Z, 12 C.F.R. Part 226 which gives the Defendant a continuing right
to rescind the subject mortgage which right Defendant exercised and Defendant confirmed the
exercise of this right by sending a rescission letter to Plaintiff and to all other requisite entities,
These material facts the plaintiff does not dispute.
30. The defendant asserts and the plaintiff does not dispute that it materially failed to
comply with TILA by, among other things, understating the Annual Percentage Rate (APR) by
more than the allowed .125%. 15 U.S.C. 1601.
31. The defendant’s assertion that the plaintiff failed to materially comply with TILA is
based on the “Federal Truth-In-Lending Disclosure Statement” involved in the subject loan
transaction which discloses an APR of 9.573%. The actual APR of the subject variable rate loan
is more than .125% higher than the disclosed rate because the overshadowing violation set up in
the defendant’s affirmative defenses and discussed below, by definition renders the disclosures
of the APR on the HUD-1 inaccurate and beyond the allowable tolerances of TILA.
32. The defendant further asserts that plaintiff materially failed to comply with TILA by
not providing the Defendant with a handbook explaining the features of adjustable rate
mortgages (ARMs) as required by law. 15 U.S.C. 1601.
33. TILA requires certain special information be provided and disclosed to borrowers
when an interest rate is an ARM, including a booklet titled “Consumer Handbook on Adjustable
Rate Mortgages,” or a suitable substitute. Plaintiff failed to provide or disclose to defendant the
aforementioned handbook and plaintiff does not dispute this fact.
34. The defendant asserts that the plaintiff failed to comply with its legal obligation to
terminate any security interest in the Defendant’s residence on account of the rescission which
occurred in a timely manner and, as a result of said rescission, the Plaintiff has no lawful right to
pursue the equitable remedy of foreclosure.
35. The ARM booklet is a material disclosure which triggers rescission rights in the
borrower when not provided and the failure to give an ARM booklet is a material violation of
TILA. See: note 48 of Section 226.23 of Regulation Z
36. Adjustable rate mortgages (ARMs), secured by the borrower’s principal dwelling
with a maturity longer than one year, are required to be disclosed with additional information. To
simplify disclosure requirements for variable rate loans, creditors may disclose any variable rate
transaction applying the ARMs disclosure rule. However, the reverse is not allowed. Reg. Z. §
226.18(f); 52 Fed. Reg. 48665 (Dec. 24, 1987)….Failure to disclose properly and accurately the
requirements of variable rate loans entitles the consumer statutory and actual damages and also
rescission right. In re Fidler, 210 B.R. 411 (D. Mass. 1997).
OBJECTION TO ATTORNEY FEES AND COSTS

37. Plaintiff seeks an award of attorney’s fees pursuant to a contractual provision

contained in the mortgage, which is the subject of this foreclosure action against Defendant.
However, plaintiff’s counsel’s affidavit fails to specify that he performed the services and also
bases his affidavit on the purported records of some other attorney.
38. In effect, the plaintiff’s attorney has taken away from the court its obligation to
evaluate and determine the reasonableness of the fee and the basis of the charge and asks the
court to rely on the plaintiff’s version of reasonableness based on inadmissible hearsay.
39. The entire affidavit is deficient as to each and every entry for usurping the court’s
power to determine a proper attorney’s fee award.
40. Plaintiff’s counsel fails to specify whether and to what extent or amount the plaintiff
actually is contractually obligated to pay its counsel for an attorney’s fee in pursuing this
foreclosure and the plaintiff fails to put any documents or other evidence before the court upon
which any determination can be made in this regard.
41. The contractual provision in the mortgage which requires the Defendant to pay
Plaintiff a attorney’s fee upon default is an indemnification agreement and the Plaintiff may
recover a reasonable fee or the amount the lender must actually pay the attorney whichever is
lower. See Dunn v. Sentry, 462 So.2d 107, 108 (Fla. 5th DCA 1985); Jemco, Inc. v. UPS, Inc.,
400 So.2d 499, 502 (Fla. 3rd DCA 1981), as cited in Wayne v. Krassner, 6 Fla. Weekly Supp.
534 (11th Cir. 1999).
42. Florida has adopted the federal lodestar method for computing reasonable attorney
fees. See Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985). In so
doing, the Florida Supreme Court set out specific guidelines this Court must apply when
computing reasonable attorney fees. These guidelines incorporate the requirements of Rule 4-1.5
of the Rules Regulating The Florida Bar. See Morgan v. South Atlantic Production Credit
Association, 528 So.2d 491, 492 (Fla. 1st DCA 1988). Additionally, Florida Courts have
emphasized the importance of record keeping for legal services performed, especially when a
party other than the client may have to pay the attorney’s fee. See Rowe, 472 So.2d at 1150.
Application of the Rowe criteria requires, among other things, determining the hours reasonable
expended by the attorney, based upon a review of the attorney’s time records. Rowe at 1150.
“Hours reasonable expended” can mean the number of hours other attorneys in the community
would expend for a similar dispute and still comport with Rowe. See In Re Estate of Platt, 586
So.2d 328, 333 (Fla. 1991).
43. Plaintiff’s attorney has failed to establish the number of hours other attorneys in the
community would expend on a similar foreclosure action. While the plaintiff’s counsel’s manner
of presenting the plaintiff’s claim to an attorney’s fee may be efficient for Plaintiff’s attorney,
this approach is so vague as to deny Defendant and this Court the ability to determine the
reasonableness of the fee the Plaintiff seeks, which is an obligation Rose, mandates in setting
reasonable attorney’s fees. See Rowe, 472 So.2d at 1150. In addition the failure of the
plaintiff’s attorneys to document the “uncontested” work performed should result in the Court
lowering the fee award. See Flamingo v. Qualls, 667 So.2d 363, 364 (Fla. 1st DCA 1995).
44. An award of attorney’s fees based solely on an affidavit or testimony of the attorney
seeking the fee, and over a party’s objection is improper and an abuse of discretion unless there
has been a stipulation. See Morgan v. South Atlantic Production Credit Association, 528 So.2d
491, 492 (Fla. 1st DCA 1988); Geraci v. Kozloski, 377 So.2d 811, 812 (Fla. 4th DCA 1979).
45. Because Defendant objects to the claim of attorney time expended and challenges the
reasonableness of the fee as submitted in the Plaintiffs affidavits an evidentiary hearing on the
issue is required. See Morgan, 528 So.2d at 492-93.
46. Defendant likewise has no way of assessing if some of the fees sought for the
contested portion of this action should be off-set by the fees Plaintiff seeks for the uncontested
portion. Geraci, 377 So.2d at 812.
47. In addition, in this case Plaintiff has filed a supporting affidavit from a third
attorney who practices in Broward County, Florida that fails to meet the requirements to support
the plaintiff’s fee demand. The attorney’s affidavit does not indicate that he reviewed the files of
the plaintiff’s attorney in this foreclosure action, but only that he has reviewed some records of
the files of the plaintiff’s law firm. There is no claim by the attorney that he has personally
reviewed the actual file at issue. The attorney does not state that he is familiar with the fees
customarily charged by attorneys for similar legal matters in this county. The attorney, in
summary fashion, advises the court that the hours demanded by plaintiff’s counsel is reasonable
“in such cases” and further asks the court to blindly accept the fee.
48. Defendant objects to the attorney’s fees and costs requested by the plaintiff in this
foreclosure action and asks the court to deny same on the basis of the lack of an adequate record
to support such award.
PLAINTIFF’S AFFIDAVITS ARE NOT ADMISSIBLE

49. Supporting affidavits must be made on personal knowledge. "The purpose of the
personal knowledge requirement is to prevent the trial court from relying on hearsay when ruling
on a motion for summary judgment . . . and to ensure that there is an admissible evidentiary basis
for the case rather than mere supposition or belief." Pawlik v. Barnett Bank of Columbia County,
528 So. 2d 965, 966 (Fla. 1st DCA 1988). See also Thompson v. Citizens National Bank of
Leesburg, Florida, 433 So. 2d 32 (Fla. 5th DCA 1983) (employee of the lender’s predecessor in
interest, the FDIC, who claimed to be in custody of the bank’s business records could not state
he had personal knowledge of its predecessor’s records which were also not kept under his
supervision and control); See also In re: Stewart 391 B.R. 327 (Bankr. E.D. La. 2008) (judgment
for debtor based upon Wells Fargo’s failure to reconcile its records and inherent failures in its
records administration)
Wherefore, Defendant believes she has shown the court that material facts are in genuine
dispute as to whether the plaintiff comes to court entitled to receive equitable relief in the form of a
foreclosure. Because the Plaintiff has not sustained its burden or its entitlement to a foreclosure,
summary judgment should be denied. Warring v. Winn-Dixie Stores, Inc., 105 So 2d. 915 (Fla 3rd
D.C.A. 1958).

CERTIFICATE OF SERVICE
The undersigned certifies that a true copy of this document has been hand delivered on
this day 5thd day of November, 2009 to: Michael K. Winston, Carlton Fields, P.A. ,
CityPlace Towers, 525 Okeechobee Blvd. Suite 1200, West Palm Beach, Fl. 33401
Fax: 561 659-7368

Donna S. Glick
Law Offices of Davd J. Stern, P.A.
Attorney for Plaintiff
900 South Pine Island Road, Suite 400
Plantation, Fl. 33324-3920
Fax: 954 233-8577

JACKSONVILLE AREA LEGAL AID, INC.,

_____________________________________
April Carrie Charney, Esquire
Fla. Bar. No.: 310425
126 W. Adams Street
Jacksonville, Florida 33202
Telephone: (904) 356-8371, ext. 373
Facsimile: (904) 224-1587
april.charney@jaxlegalaid.org
Attorneys for Separate Defendant