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Motion to Strike Affidavit for attorney’s fees and costs
The cat is way out of the bag. The lenders and banks that brought our country to the verge of collapse with fraud, misrepresentation and lies have now brought these same practices into local courtrooms. Every day judges who sign foreclosure orders are confronted with legal pleadings that do not conform to the most basic requirements of professional standards, but who really cares about that…the real issue is that because the lenders cannot produce the evidence they need to proceed with their cases, they….produce the evidence they need to proceed with their cases. I’ve previously posted about affidavit and assignment fraud..it comes in three areas: 1) False Affidavits of Service or False Affidavits That We Could Not Serve the Defendant. (See Sewer Service); 2)False Assignments of Mortgage (MERS assigns this Mortgage to Deutsche Bank who now has the right to foreclose); 3)False Affidavits of Amounts due and owing. A Subpoena for Every Foreclosure! Many times these documents are false on their face, but sometimes it takes a little digging to uncover the lies and misrepresentations….that’s where a subpoena comes in. The following is text of a subpoena I use. Next is a Motion to Strike Affidavit. Now there are going to be foreclosures that are proper (such as when original lenders foreclose) but in virtually every other case (especially when a pretender lender is a Plaintiff), when pressed, you’re going to find that the evidence submitted to the court is filled with mistakes lies or outright misrepresentations. Given what we’re learning about the scope of this problem…subpoenas should be dropped in every case for every fact witness, assignor, assignee and affiant. Please share results of your work with me! Together we’ll take my beloved courts back. SUBPOENA DUCES TECUM FOR RECORDS WITH DEPOSITION STATE OF FLORIDA: TO: YOU ARE HEREBY COMMANDED to appear before a person authorized by law to take depositions at the law offices of MATTHEW D. WEIDNER, P.A., 1229 Central Avenue, St. Petersburg, Florida 33705, on MONTH DAY, 2010, for the taking of your deposition in this action and to have with you at the above time and place the following:
FL 33705 By: ________________________________ Matthew D. Weidner FBN: 0185957 Defendant’s Motion to Strike Affidavit of Christopher Spradling and for attorney’s fees and costs . 3. You have the right to object to the production pursuant to this subpoena at any time before production by giving written notice to the attorney whoose name appears on this subpoena. 2. You may condition the preparation of the copies upon the payment in advance of the reasonable cost of preparation. FOR THE COURT Matthew D. and unless excused from this subpoena by the attorney or the Court. MONTGOMERY. These items will be inspected and may be copied at that time. If you fail to: (a) appear as specified. You will not be required to surrender the original items. 4. P. or (b) furnish the records instead of appearing as provided above. 5. papers.1. Weidner. records. papers. evidence or instructions that you reviewed or relied upon in order to prepare the affidavit or assignment executed in this case. 1229 Central Avenue St. records. You are subpoenaed by the attorneys whose names appear on this subpoena. or (c) object to this subpoena you may be in contempt of Court. DATED on XXXX X. USA. records. All employment records that exist between Christopher Spradling and any employer who has employed Spradling within the last three years including current employers. All books. All records that purport to give Christopher Spradling the authority to sign or execute any documents on behalf of any person or entity. Any and all other books. documents or tangible things that relate to HSBC BANK. you shall respond to this subpoena as directed. LP concerning the transactions alleged in the complaint against Annabel E. 2010. ASSOCIATION AS TRUSTEE FOR THE ACE SECURITIES CORPORATION HOME EQUITY LOAN TRUST.A. All documents. ASSET BACKED PASS-THROUGH CERTIFICATES’ claim against ANNABEL E. SERIES 2005-AG1. documents and other tangible things kept by LITTON LOAN SERVICING. Petersburg. Montgomery. books.
averred in the Affidavit that: (1) the Plaintiff or its assigns was owed a total of $408. LP (hereinafter ” Litton”•). AS TRUSTEE FOR THE ACE SECURITIES CORPORATION HOME EQUITY TRUST. R. as employee of Litton and not the Plaintiff. Failure to Attach Documents Violates Fla. and in support thereof states as follows: FACTS This is an action for foreclosure of real property owned by the Defendant. pursuant to Fla. NATIONAL ASSOCATION.”• Spradling. Montgomery (hereinafter ” Defendant”•). (hereinafter ” Florida Default Law Group”•). Litton is simply a ” middleman”• of sorts who is responsible for the transfer of funds between the various assignees of the underlying Mortgage and Note and has no knowledge of the underlying transactions between the Plaintiff and Defendant. USA.809.901 (1989) . §90. Stat. Upon information and belief. the Defendant Annabel E. and respectfully MOTIONS THIS COURT TO STRIKE AFFIDAVIT OF CHRISTOPHER SPADLING AND FOR ATTORNEY’S FEES AND COSTS. and (3) Plaintiff was entitled to a judgment as a matter of law. Civ. by and through its counsel Florida Default Law Group. WEIDNER. based upon his personal knowledge. LEGAL REASONING IN SUPPORT OF MOTION I. by and through the undersigned counsel MATTHEW D. The Affiant of the above-mention Affidavit was identified as Christopher Spradling (hereinafter ” Spradling”•). Plaintiff Failed to Attach Documents Referred to in the Affidavit a. gave Notice of Filing of Affidavit as to Amounts Due and Owing and the accompanying Affidavit (hereinafter ” Affidavit”•).COMES NOW. Upon information and belief. Litton. 1. in turn. 2010 Plaintiff. I have personal knowledge of the facts regarding the sums which are due and owing to Plaintiff or its assigns pursuant to the Note and Mortgage which is the subject matter of the lawsuit”• and a second which states ” I am familiar with the books of account”¦concerning the transactions alleged in the Complaint. The named plaintiff in this case is HSBC BANK. On February 2. Spradling identified himself as a ” Foreclosure Manager”• for LITTON LOAN SERVICING.L.”• Emphasis added. was identified as ” the servicer of the loan”¦*Litton+ is responsible for the collection of this loan transaction and pursuit of any delinquency in payments. ASSET BACKED PASS-THROUGH CERTIFICATE (hereinafter ” Plaintiff”•). SERIES 2005-AG1.510. Spradling. P. Nowhere in the Affidavit was either Litton or Spradling identified as either the Plaintiff or the Plaintiff’s authorized agent. has no knowledge of the underlying transactions between the Plaintiff and Defendant. Pro. The Affidavit does not contain any mention as to who owes the Plaintiff the sum alleged save for one sentences line which cryptically state ” [s]pecifically.30. (2) the Plaintiff was entitled to enforce the Note and Mortgage.
Hedden. in part. 1. the Affidavit should be struck in whole. In addition.Florida Statue §90. 1226 (Fla.”• See Black’s Law Dictionary. Stat. Pro. and documents which [Spradling] has examined are managed by employees or agents whose duty it is to keep the books accurately and completely. Pro.) Here. in pertinent part. LP concerning the transactions alleged in the Complaint. Spradling averred to records which he did not submit nor could he testify for the authenticity of just as the affiant in Zoda did. Zoda v. which renders him incompetent to testify to the matters stated therein as the Second District in Zoda held. incompetent to testify to the matters stated in his affidavit as affiant was unable to authenticate the documents referred to therein. Pro.901 (1989).”• Furthermore. 8th ed. 2004.”• Nevertheless. that ” affidavits”¦shall show affirmatively that the affiant is competent to testify to the matters stated therein”•).901 (1989) states. 2d 757 (Fla. §90. R. Spradling has only examined the books. Spradling does not meet the definition of ” custodian. 2d 1225. By Spradling’s own admission ” *t+he books. Therefore. b. records. Spradling has failed to attach any of the books. 2d DCA 1992) (holding. Pasco County.”• Failure to attach such papers is grounds for reversal of summary judgment decisions. Spradling affirmatively states in the Affidavit that he is ” familiar with the books of account and have examined all books. that failure to attach certified copies of public records rendered affiant. Civ. Civ. records. Nevertheless..510(e) and is grounds for a reversal of a summary judgment decision in favor of the Plaintiff. Civ. See Fla. as previously demonstrated. In essence. Spradling has not attached any of these books.30. 1. 1. Civ. the Affidavit should be struck in whole. Inc. Failure to Attach Documents Violates Fla. R. records or documents.”• which is ” a person or institution that has charge or custody (of”¦papers). records. Spradling’s failure to attach the documents referred to in the Affidavit without being custodian of same is a violation of the authentication rule promulgated in Fla. R. Spradling averred that the ” Plaintiff or its assigns. that ” *a+uthentication or identification of evidence is required as a condition precedent to its admissibility. See CSX Transp. Pro. in pertinent part.510(e) (which reads. This failure to do so is a violation of Fla. and documents which he refers to in the Affidavit while the true custodians of these documents are the employees or agents whose duty it is to keep the books accurately and completely. R.510(e) Fla. v.”• The failure to authenticate documents referred to in affidavits renders the affiant incompetent to testify as to the matters referred to in the affidavit. Therefore.”• Emphasis added. II. records or documents referred to in the Affidavit.809.) As previously demonstrated. that ” *s+worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. Affidavit Was Not Based Upon Spradling’s Personal Knowledge . and documents kept by Litton which allegedly concerned the transaction referred to in the Complaint against the Defendant. in part. Thus. 1. Spradling referred to books. who was not a custodian of said records. 660 So. and documents kept by LITTON LOAN SERVICING. custodian. 2d DCA 1995) (reversing summary judgment granted below where the affiant based statements on reports but failed to attach same to the affidavit.510(e) provides. is owed”¦$408. records. 596 So.
The Third District. noted that ” 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. 2d 1204. Stat.S. 2d 787 (Fla. hearsay. In re Forefeiture of 1998 Ford Pickup. This opposition to hearsay evidence has deep roots in Florida common law. in pertinent part. 3d DCA 1993). 534 So. Inc. Civ. save for one line which states that Litton ” is responsible for the collection of this loan transaction and pursuit of any delinquency in payments. Florida Ins. Steger & Steger. the entire Affidavit is hearsay evidence as Spradling has absolutely no personal knowledge of the facts stated therein. Bishop of Diocese of Orlando. the admissibility of an affidavit rests upon the affiant having personal knowledge as to the matters stated therein. the Affidavit fails to set forth with any degree of specificity what duties Litton performs for the Plaintiff. 4th DCA 1969).510(e) (reading. 2d 965. 3d 711 (Fla. the Plaintiff) and is offering . Paxson Electric Company. in Alvarez v. Flea Market U. 2d 129 (Fla. All State Supply Co.A. other than one made by the declarant while testifying at the trial or hearing. Thus. West Edge II v. Here.A as Capello’s affidavit in opposition was not based upon personal knowledge and therefore contained inadmissible hearsay evidence. which purports to be the servicer of the loan. by its very nature. R. 2d DCA 2005). 540 So. there is ample precedent for striking affidavits in full which are not based upon the affiant’s personal knowledge. In Capello v. Page v. 1FTZX1767WNA34547. offered in evidence to prove the truth of the matter asserted. 1. any statement he gives which references this underlying transaction (such as the fact that the Plaintiff is allegedly owed sums of monies in excess of $400. Demartino. So. or (2) had any contact with the Defendant with respect to the underlying transaction between the Plaintiff and Defendant.As a threshold matter. 625 So. Enterprise Leasing Co. In addition.. The Florida Rules of Evidence define hearsay as ” a statement. 5th DCA 1989).. Because Spradling has no personal knowledge of the underlying transaction between the Plaintiff and Defendant. Litton is not the named Plaintiff in this case. §90. 528 So. v. 910 So. 4th DCA 1993). 226 So. 2d DCA 2000). 2d 450 (Fla. As an employee of Litton. 1st DCA 1988)). Barnett Bank of Columbia County. even if it is based on personal knowledge.”• At best. Crosby v. he has no knowledge of the underlying transaction between the Plaintiff and the Defendant. Guaranty Association. the Third District affirmed an order of summary judgment in favor of Flea Market U. 966 (Fla. 1st DCA 1986). Mullan v. 779 So. whose primary function was to transfer of funds between the various assignees of the underlying Mortgage and Note.”• Id at 1232 (quoting Pawlik v.”• Fla. 2d DCA 2009). 1205 (Fla. nor does the Affidavit aver that either Spradling or Litton is the agent of the Plaintiff. 2d 953 (Fla. 613 So. that ” affidavits shall be made on personal knowledge”•).A. See also Doss v. a corporate officer’s affidavit which merely states conclusions or opinion is not sufficient. See Fla. Litton acted as a middleman of sorts.000) is. 2d 1230 (Fla. 3d DCA 1995).. 2d 136 (Fla. 1st DCA 1988). Neither Spradling nor Litton: (1) were engaged by the Plaintiff for the purpose of executing the underlying mortgage transaction with the Defendant.S. Here Spradling is averring to a statement (that the Plaintiff is allegedly owed sums of money) which was made by someone other than himself (namely.801(1)(c) (2007). Nour v. Stanley. 661 So. Pro. Identification No. Kunderas. P.. 2d 474 (Fla. 2d 174 (Fla. Additionally. 15 So.
several problems with this argument. Inc. Lapidus. Inc. no memorandums. record. as the source of this information. Specifically. shows a lack of trustworthiness because Spradling failed to attach the books. opinion. in any form. record. reports. 151 So. 793 So. Spradling averred that the Plaintiff was entitled to enforce the Note and Mortgage and that the Plaintiff was entitled to a judgment as a matter of law. 851 So. or from information transmitted by. Because Spradling’s statements in the Affidavit are not based upon personal knowledge. records. Here. Fla. As no hearsay exception applies to these statements. of course. or diagnosis. III. records. §90. Bergeron. the Affidavit contained conclusions of law which were not supported by facts stated therein. This rule provides that notwithstanding the provision of §90. the books. all as shown by the testimony of the custodian or other qualified witness.802 (which renders hearsay statements inadmissible). of Cent. unless the sources of information or other circumstances show lack of trustworthiness. Affidavit Included Impermissible Conclusions of Law Not Supported by Facts An affidavit in support of a motion for summary judgment may not be based upon factual conclusions or opinions of law. and documents to the Affidavit and because neither Litton nor Spradling have knowledge of the underlying transaction between the Plaintiff and the Defendant. if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum. or as shown by a certification or declaration that complies with paragraph (c) and s. even though the declarant is available as a witness. events. 3d DCA 1963). Fla. two legal conclusions. an affidavit which states a legal conclusion should not be relied upon unless the affidavit also recites the facts which justify the conclusion. Furthermore. JUA. 62 (Fla. made at or near the time by. 2d 978.this as proof of the matter asserted (that Plaintiff is entitled to enforce the Note and Mortgage and that Plaintiff is entitled to a judgment as a matter of law. the only statements which Spradling can aver to are those which regard the transfer of funds between the various assignees of the Mortgage and Note.) At best. Stat.. Jones Constr.902(11). 2003). hearsay statements are not inadmissible. 90. but did not support this conclusion with statements which referenced exactly who the Plaintiff was entitled to enforce the . Emphasis added. conditions. Acquadro v. of acts. they should nevertheless be admitted under the ” Records of Regularly Conducted Business Activity”• exception. or data compilation. however. a person with knowledge. or data compilation. 2d 61. and as previously demonstrated. if the statement is [a] memorandum. and documents referred to by Spradling in the Affidavit (which. Finally. Litton. who cannot be a person with knowledge as Litton does not have any personal knowledge of underlying transaction between the Plaintiff and the Defendant. report. 979 (Fla. report. Rever v. There are. 2d 665. were not attached) were kept by Litton. 2d DCA 2001). v.803(6) (2007). they are inadmissible hearsay evidence. Co. or data compilation have been offered by the Plaintiff. Workers’ Comp. Fla. 672 (Fla. The Plaintiff may argue that while Spradling’s statements may be hearsay. To begin. records. Furthermore.. the Affidavit should be struck in whole.
Oct. Recently. Pro. WELLS FARGO.809. Sanction of Attorney’s Fees is Appropriate Fla. the Bankruptcy Court for the Southern District of Florida sanctioned both Florida Default Law Group and its client. R. pg. This is indicia of a modus operandi on Florida Default Law Group’s part to present misrepresentations and false affidavits to the Court which make an award of attorney’s fees and costs an appropriate sanction. Spradling has not adequately supported his two legal conclusions. 1. In fact there is no mention of any of the parties in question save for one cryptic line in where Spradling states that ” *s+pecifically. 28. I have personal knowledge of the facts regarding the sums which are due and owing to Plaintiff or its assigns pursuant to the Note and Mortgage which is the subject matter of the lawsuit”• and another which states ” I am familiar with the books of account”¦concerning the transactions alleged in the Complaint. Both Florida Default Law Group and the Plaintiff both knew that Spradling’s affidavit lacked authenticity and reliability yet still chose to file it with the Court. and any offending party or attorney may be adjudged guilty of contempt.’s Motion for Relief from Stay and Imposing Sanctions for Negligent Practice and False Representations. this is not Florida Default Law Group’s first time filing affidavits in bad faith. Emphasis added. N. 08-14257-BKR-JKO (Order Granting Wells Fargo. . no basis in law. Civ.30 and that the Plaintiff should be able to enforce some Note and Mortgage against that particular someone. $95.”• Nowhere in the Affidavit does Spradling state that the Plaintiff is entitled to enforce the Note and Mortgage against the Defendant nor does Spradling state that the Plaintiff is entitled to a judgment as a matter of law because the Defendant owes the Plaintiff money.130. 2008). including reasonable attorneys’ fees. In addition. on its face. in full.Note and Mortgage against. 1. the Affidavit should be struck in whole. IV.  See Affidavit As to Amounts Due and Owing. At best the Affidavit accuses someone of owing the Plaintiff $408. Case No. that [i]f it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay. See In re: Fazul Haque. The undersigned counsel has expended considerable time and resources preparing to defend against an affidavit which has. Because the Affidavit contained impermissible conclusions of law which were not supported by facts stated therein.510(g) reads. WHEREFORE. Defendant asks this Court to GRANT its MOTION TO STRIKE AFFIDAVIT OF CHRISTOPHER SPRADLING and enter an ORDER granting ATTORNEY’S FEES AND COSTS and any other relief the Court deems just and proper. the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur.45 for false representations made in affidavits in that court as well as other bankruptcy courts in Florida.A. By not clearly identifying the parties in question.
. 1. pg. 2. pg. 1.  Id. 1. 2. pg.  Id. Id.  See Affidavit As to Amounts Due and Owing.  See Affidavit As to Amounts Due and Owing. 1. pgs. 1.  See Affidavit As to Amounts Due and Owing.  See Affidavit As to Amounts Due and Owing. pg. pg.
This action might not be possible to undo. Are you sure you want to continue?