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Bank United -Motion to Strike Affidavit of Lori Siler

Bank United -Motion to Strike Affidavit of Lori Siler

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Published by: Lecso1964 on May 28, 2012
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07/28/2013

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IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY FLORIDA
BANKUNITED, AS SUCCESSOR IN INTEREST TO BANKUNTED, FSB
CASE NO. 50 2009 CA 024244XXXXMB (AW
)Plaintiff,v.
DEFENDANT’S MOTION TOSTRIKE PLAINTIFF’S AFFIDAVITIN SUPPORT OF SUMMARYJUDGMENT
ARPAD TOTHDefendant, Defendant, Individual ARPAD TOTH (hereafter “Defendant”) in Propria Persona as undersigned,hereby moves this Court to strike the Affidavit in Support of Plaintiff’s Motion for SummaryJudgment executed by Lori Siler for the reasons set forth below:
1.
In support of its Motion for Summary Judgment, Plaintiff filed the Affidavit in support of Plaintiff’s motion for summary judgment (“Affidavit”) executed by Lori Siler (“Affiant”).2.Lori Siler is a Foreclosure Specialist in the Default Administration Department atBankUnited, assignee of the FDIC, as receiver for BankUnited FSB. (Hereafter “Plaintiff”)3.The original lender of the Defendant’s loan was BankUnited FSB.
4.
Affiant is not competent to testify to the matters stated within her Affidavit. See:Fla.R.Civ.P. 1.510; Elser v. Law Offices of James M. Russ. P.A., 679 So. 2D 309 (Fla. 5thDCA 1996). (An affidavit must clearly show the affiant is competent to testify to thematters stated in the affidavit.)
 
5.
Fla. R. Civ. Pro 1.510(e) sets out the formal requirements that affidavits must meet. Therule reads, in part:
[s]upporting and opposing affidavits shall be made on personalknowledge, shall set forth such facts as would be admissibleinevidence, and shall show affirmatively that the affiant iscompetentto testify to the matters stated therein. Sworn or certifiedcopies of all papers or parts thereof referred to in an affidavit shall beattached thereto or served therewith. The court may permitaffidavits to be supplemented or opposed by depositions,answersto interrogatories, or by further affidavits.
6.
Thus, when a supporting affidavit does not comply with the requirements that it: (1) bemade on personal knowledge; (2) set forth such facts as would be admissible in evidence;and (3) show affirmatively that the affiant is competent to testify to the matters statedtherein, it is legally insufficient. Plaintiff’s Affidavit is invalid on its face as will be further set out below.
7.
An affiant fails to satisfy this competency requirement where affiant merely states, withoutmore, that has “personal knowledge”.
 Montejo Investment. N.V. v. Green Cos.,Inc of Florida, 471 So. 2D 158 (Fla.3rd DCA 1985)
 
Where affiant merely stated his title, thathe was familiar with the facts stated in the complaint, and that to be best of his knowledgeand belief the facts were true and accurate, affidavit was legally insufficient as it failed toshow that affiant was competent to testify to matters set forth therein, was not based on personal knowledge, and did not set forth facts that would be admissible in evidence
8.
An affidavit which shows conclusively on its face that the affiant could not have possess personal knowledge of the matters stated therein likewise is legally deficient. See:
AvatarProps. Inc. v. Boney. 494 So. 2D 289 (Fla.2
nd
DCA 1986)
See also:
Thompson
 
v. Citizens Nat'l Bank of Leesburg, 433 So. 2d 32 (Fla. 5th DCA (1983)
(affidavit filed by liquidator of FDIC in case involving note obtained from FDIC's predecessor in interestwas legally insufficient where affiant's allegations as to the history of the loan transactionand the relevant business records could not have been made on the basis of  personal knowledge); 49 Fla. Jur 2d, Summary Judgment § 39 (2006).
9.
In this instant case Lori Siler claims under Paragraph One (1) she is” personally familiar with the loan which Plaintiff is entitled to enforce pursuant to the Purchase andAssumption agreement facilitated by the FDIC”. However she fails to offer any evidencein support of her statement
, fails to attach a certified copy of such alleged Agreement
,or any other document referring to the purported Agreement. Therefore, her affidavit fallsunder the hearsay rule (Fla.Statute 90.801) and is inadmissible as evidence. When adocument supplies the bases for an affiant’s personal knowledge, the affiant must attachthe document to the affidavit. See:
Zoda v. Hedden, 596 So. 2d 1225 (Fla. 2
nd
DCA1992
), the
 
2
nd
DCA
 
reversed an entry of summary judgment where the only recordevidence was an affidavit, relying on records which were neither attached nor authenticated. Likewise, in
CSX Transp.,Inc. v Pasco County, 660 So. 2d 757 (Fla.2
nd
DCA 1995)
(court reversed summary judgment where witness based statement on reports,failed to attach reports to affidavit.)
10.
Under paragraph 3, Lori Siler claims she has “personal knowledge of the books andrecords of the Plaintiff” but latter admits that information and entries are made by
“persons”
(other than her) with knowledge of the information being recorded. She doesnot state what her job is and clearly admits that she relies upon someone else’s personalknowledge for her claims. Therefore,
her affidavit lacks the “personal knowledge”required, regardless of its assertion to the contrary.
11.
Under paragraph 4, she makes the following statement “The allegations of the Complaintfiled in this action are true and correct. “ The Lori Siler Affidavit contains no more thanconclusions of law, inadmissible statements of ultimate fact, hearsay from inadmissible

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