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Memorandum of Law in Support of Motion to Strike Affidavits - Astoria Fed. Mortgage v. Sullo

Memorandum of Law in Support of Motion to Strike Affidavits - Astoria Fed. Mortgage v. Sullo

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Published by JusticeForAmericans
Defendant's Memorandum Of Law. This Memorandum has interesting and timely case law citings pertaining to Affidavits of Debt, Personal Knowledge, and Foreclosure Defense.
Defendant's Memorandum Of Law. This Memorandum has interesting and timely case law citings pertaining to Affidavits of Debt, Personal Knowledge, and Foreclosure Defense.

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Published by: JusticeForAmericans on Mar 24, 2012
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 DOCKET NO. CV - 10- 6004566-S : SUPERIOR COURTASTORIA FEDERAL MORTGAGE CORP.: JUDICIAL DISTRICT OFSTAMFORD / NORWALKVS:: AT STAMFORDJOHN SULLO, ET AL : MARCH 11, 2012
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TOSTRIKE AFFIDAVITS OF RICHARD G. FIKE AND JAMES D. STONECIPHER
The Defendant, John Sullo, in the above-captioned matter files the instantMemorandum Of Law In Support Of Defendant’s Motion To Strike Affidavits Of RichardG. Fike And James D. Stonecipher.It is elementary that a Court of Law should only entertain relying on facts andinformation contained in an affidavit where the affiant has
personal knowledge 
. Thereis voluminous case law from around the country evidencing courts dismissing affidavitswhich do not survive the test of “personal knowledge”. Case law in Connecticut isconsistent with the idiom that an affiant must hold first hand “personal knowledge”.In the Superior Court matter of Denise Farina v. Branford Board of Education, NewHaven J.D. (CV10-5033085-S), Memorandum of Decision of Judge Robin L Wilson,May 27, 2010, the Court Granted
Defendant’s Motion To Strike Plaintiff’s Affidavit 
, as itwas not based on personal knowledge. In entertaining the Defendant’s motion, thecourt noted that it raised the issue of the affidavit’s credibility, which affects how thecourt will consider plaintiff’s argument. In the Plaintiff’s affidavit, Mica Notz, the seniorparalegal of the law firm representing the plaintiff, attests to statements made by “Jane,”who answered the telephone when Notz called the Branford town clerk's office. TheCourt found that the Affidavit consists of “Hearsay”. The Court further stated, the
 
(2)majority of the averments in the affidavit rely upon information obtained by Notz through“Jane,” not upon Notz's personal knowledge.In the Superior Court Matter of JP Morgan Chase Bank v. Michael Porzio, StamfordJ.D., (CV09-5010388-S), Order of Judge Douglas Mintz, October 11, 2011,
Defendant’s Motion To Strike Affidavit Of Lost Note 
was Granted. Defendant successfully arguedthat the Affiant, Christie H. Hill, did not make the claim to have personal knowledge.The Court agreed that Plaintiff’s Affidavit was Hearsay. It was also found that Affiantfailed to allege that she had personal knowledge of how the business records were keptat Washington Mutual, the predecessor bank.In the instant Astoria Federal Mortgage Corp. v. Sullo matter, both of the Affiants inthe subject Affidavits Of Debt fail to allege what exactly they have personal knowledgeof. Neither affiant makes any attestation that they have personal knowledge of thebusiness records of Astoria Federal Mortgage Corp., how such records were kept, whoin particular is the custodian of records, and whether affiants have any personalknowledge of any of the financial affairs of Defendant John Sullo.Defendant John Sullo argues and maintains, that an affiant cannot gain personalknowledge by a transfer of knowledge held and/or stated by someone else, such ishearsay.
“ ‘Hearsay’ means a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted.” 
Connecticut Code of Evidence, § 8-1(3).In the Superior Court Matter of Winkleman v. Dohm, Waterbury J.D. (CV92-096682-S), Judge Barnet, April 27, 1992, (6 Conn. L. Rptr. 382), The court held that an affidavitin support of a motion to dismiss must meet the same requirements of an affidavit insupport of a motion for summary judgment
The statements contained in the affidavitmust be based on personal knowledge.
 
(3)Defendant points out to the Court that, the very concept of an affidavit is a documentstating facts within the knowledge of the affiant. See Friends of Animals, Inc. v. UnitedIlluminating Co., Superior Court, judicial district of New Haven, Docket No. CV 064018257 (September 20, 2006, Skolnick, J.T.R.).
Federal Law
Many states, such as Florida [Rule 1.510(e)], and Kentucky [Rule CR 56.05] followand adopt the principle and standard set forth in the Federal Rules Of Civil Procedure,Rule 56(e)(1):“A supporting or opposing affidavit must be
made on personal knowledge, setout facts that would be admissible in evidence
, and show that the affiant iscompetent to testify on the matters stated. If a paper or part of a paper is referredto in an affidavit, a sworn or certified copy must be attached to or served with theaffidavit. The court may permit an affidavit to be supplemented or opposed bydepositions, answers to interrogatories, or additional affidavits. [emphasisadded]”A
district court
may properly hold that portions of or all of an affidavit attached to amotion for summary judgment is inadmissible because the affiant lacks personalknowledge or first hand information. See Bruno v. Plateau Mining Co., 747 P.2d 1055(Utah App. 1987). See also, Murdock v. Springville Municipal Corp., 982 P.2d 65, 72(UT App. 1999).In the foreclosure matter of
GMAC Mortgage, LLC vs. Debbie Visicaro, ET AL
(CaseNo: 07013084-CI) 6
th
Judicial Circuit Court in Pinellas County, Florida; HonorableAnthony Rondolino shed light on the issue of credibility of affiants and the so called“Personal Knowledge Affidavits” and other documents being filed in Florida foreclosurelawsuits. On April 7, 2010, Judge Rondolino in Court Hearing stated,
“I really honestly--I don’t have any confidence that any of the documents the Court’s receiving on these mass foreclosures are valid” 
(transcript of Hearing, April 7, 2010,pg. 7, lines 11-14). Judge Rondolino further proclaimed on the court record,
“You 

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