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Division: AW AMERICAN HOME MORTGAGE SERVICES, INC Plaintiff, vs. ZOILA J. AVILA AND PEDRO FALCONES Defendants. _________________________________________/ AMENDED MOTION TO STRIKE THE AFFIDAVIT OF INDEBTEDNESS IN SUPPORT OF MOTION FOR FINAL SUMMARY JUDGMENT OF CAROLYN WHITE Defendants ZOILA J. AVILA and PEDRO FALCONES (“Defendant”) moves to strike the Affidavit as To Amounts Due and Owing of CAROLYN WHITE ("Affiant"), and as grounds thereof respectfully states: Plaintiff has, in support of its motion for final summary judgment, filed the Affidavit of CAROLYN WHITE (“Affidavit”). The Affidavit attests to the contents of books and records kept by AMERICAN HOME MORTGAGE SERVICING, INC. regarding the Defendants account, the originals of which have not been provided, and no statutory excuse has been proffered as to why the originals are not available. The Affidavit contains no statement that falsely making such a certification or declaration would subject Affiant to criminal penalties under the laws of Florida.
. Florida Dept. Bad.2d 600 (Fla.2d 1319 (Fla. Co. Further.802 (2009). 498 So. Associated Indus. An affidavit must be based on an affiant's personal knowledge to prevent the trial court from relying on hearsay as the basis for its decision and to ensure there is an admissible evidentiary basis for the claim or affiant's position rather than mere belief or conjecture. An affidavit which shows conclusively on its face that the affiant could not possess personal knowledge of the matters stated therein likewise is legally deficient. an affiant should state in detail the facts showing affiant has personal knowledge. Boney. Inc. Carter v. 2d 289 (Fla. hearsay evidence is inadmissible.2d 119 (Fla.952(2009). Hoyt v. v. Ins. 4th DCA 1986) (affidavit legally insufficient where affiant failed to set out a factual basis to support claim of personal knowledge of matter at issue in case and failed to make assertions based on personal knowledge). 868 So.. Cessna fin. § 90. Servs. §§ 90.Affiant does not represent that she is Records Custodian for Plaintiff.. Thompson v. 705 So. F. 2nd DCA 1986) (Affidavit legally insufficient where affiant clearly incapable of having personal knowledge of facts at issue in case). St.. hearsay testimony concerning the contents of business records is not admissible unless original business records have been introduced.S. Affiant does not represent the basis of her "actual and personal knowledge" of the facts contained in her affidavit. Of County Comm'rs.S. Avatar Props. and except as provided by statute. Inc. nor does she allege the basis of her knowledge regarding the loan at issue. v. 494 So. Accordingly. Corp.801(1)(c) and 90. a statement made by a declarant other than one made while testifying at a hearing offered to prove the truth of the matter asserted is hearsay. In Florida. 1st DCA 2004). Citizens . Id. of Fin.. Furthermore. F. Lucie County. 4th DCA 1998) (affidavit legally insufficient where it fails to reflect facts demonstrating how affiant would possess personal knowledge of the matters at issue in case).
v. 2d 32 (Fla. Affidavits should set forth facts which would be admissible at trial. Henderson. 2d 174 (Fla. that would be inadmissible at trial. 4th DCA 2004). USA. 327 So. Warden v. 2d 264 (Fla. 246 So. 2d 432 (Fla. should be disregarded by the trial court. Nat. Chase Manhattan Bank. Dean v.Nat'l Bank of Leesburg. 2d 546 (Fla. Inc. 793 So. v. 256 So. Allegations in an affidavit that set forth incompetent and inadmissible matters. 2nd DCA 2001)(affidavit that states only that affiant has personal knowledge of the facts. 1.). 4th DCA 1972)(affidavit predicated on inadmissible hearsay does not comply with the summary judgment rule and cannot be utilized either in support of or in opposition to summary judgment. Bank of Miami. such as hearsay or opinion testimony. Civ. Gold Coast Nor can an Affidavit be based on conclusions of law.. 156 So. P. Blvd. Further. Inc. Inc. 5th DCA 1983) (Affidavit filed by liquidator of FDIC in case involving note obtained from FDIC's predecessor in interest was legally insufficient where affiant's allegations as to the history of the loan transaction and the relevant business records could not have been made on personal knowledge.510(e) in that it does not attach the requisite sworn or certified copies of all papers or parts referred to in the affidavit. 779 So. 2d 978. JUA.. 3rd DCA 1974). that the allegations in the complaint are true and correct. R. N. 2nd DCA 2000). 2D DCA 1962). Fabricators. and that Defendant’s owes . Hurricane Boats. 2D DCA 1963). 979-80 (Fla. 2d 830 (Fla. Nager. Florida Workers' Comp. 2d 450 (Fla. See also. Deerfield Beach Bank v. Inc.. the affidavit of CAROLYN WHITE does not comport with Fla. Ham v. 433 So. First Mortg Investors. Theaters. Inc. 872 So. Jones Constr.A. Heintzelman's Ford.. 3rd DCA 1976). of Central Florida. v.) Affidavits may not be based on allegations of ultimate facts. Inc. Certified Indus. 2d 120 (Fla. Wms v. 140 So. Co.
sets forth facts and/or conclusion where she clearly was incapable of having personal knowledge of facts at issue in case.plaintiff $3. 2nd DCA 1995) (court reversed summary judgment where witness based statements on reports. Hotel George V.. sets forth hearsay or opinion testimony that would be inadmissible at trial. 2nd DCA 1972) (attorney's affidavit stating that he was familiar with client's records and the records reflect certain information constituted inadmissible hearsay). 2d 787 (Fla. Crosby v. was unable to authenticate documents referred to in his affidavit). Topping v. Wolf. 49 (Fla. 1st DCA 1988). even though those records were . Zoda v. 596 So. sets for no facts showing she has personal knowledge. Pasco County. See.312 is legally insufficient as affidavit failed to set forth any evidentiary facts that would be admissible in evidence). sets forth legal conclusions and opinion testimony. based on the abundance of case law sited above. Co. All State Pipe Supply Co. when a document supplies the basis for an affiant's personal knowledge. 2d 1204 (Fla. Paxon Elec. 576 So. In conclusion. Moreover an affidavit that amounts to nothing more than a statement by affiant that the allegations in the complaint are true similarly is insufficient. Rowland v.. the affiant must attach the document to the affidavit. and. 3rd DCA 1966) (court rejected Plaintiff's affidavit that Defendant’s acknowledged debt in writing where Plaintiff failed to attach letters from Defendant’s). CSX Transp. v. 192 So. 2d 47. fails to attach the records upon which her affidavit is based. 1st DCA 1986).. deeds. and judgments contained in public records. 2d 906 (Fla. Finally. 1st DCA 1991). 2d 757 (Fla. 487 So.671. since attorney was not custodian of public records. Inc. and consequently. Hedden. Nour v. appeal after remand. 2d 388 (Fla. 2d 1225 (Fla. 268 So. 660 So. the Affidavit of CAROLYN WHITE must be stricken as it is not based on personal knowledge.2nd DCA 1992) (attorney not competent to testify in affidavit as to property transactions reflected in settlements. but failed to attach reports to affidavit). 534 So.
A 801 North Point Parkway. Florida Equipment Company of Miami. 1Dated: October 6. 3d DCA 1965). is not competent to testify to the matters stated in the affidavit. Based on the foregoing. If the laws and rules of this state be any particular fashion wrong. Irrefutably.com By: ________________________________________ MELVA HARRIS-ROZIER. Clearly. the Defendants respectfully requests that the Plaintiff’s Motion for Summary Judgment be denied and the Affidavit of CAROLYN WHITE be stricken. in summary judgment appeals every attempt will be made by the appellate court to reverse the summary judgment. P. City of Miami. 1954). National Airlines v.2d 741 (Fla. 2010 MELVA ROZIER. Avila and Pedro Falcones Florida Bar Number: 0901121 . FL 33407 (561)840-1344 Telephone (561)840-1535 Fax E-mail: Melvarozier@aol. Defendant’s urges this Court to let them be corrected by amendment in the way which the Constitution designates but let there be no change by usurpation. CONCLUSION The purpose of a summary judgment is to avoid the expense and delay of trial where no dispute exists concerning the material facts.created by other people with personal knowledge. The record is reviewed in the light most favorable toward the party against whom the summary judgment was entered.2d 718 (Fla. 177 So. Thomas Jefferson once warned that “banking establishments are more dangerous than standing armies”. Attorney at Law Counsel for Defendant Zoila J. the affidavit shows that the Affiant. CAROLYN WHITE. Robinson v. Suite 6 West Palm Beach. not her. 71 So.
Kahane & Associates. P. mail on October 6. Ste. FL 33324.A. 3000. 8201 Peters Road. By: ________________________________________ Melva Harris-Rozier . 2010 to: Ron G. Fax (954) 382-5380. Esq.. Plantation.S.CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and accurate copy of the above has been furnished by facsimile and U. Jr. Rice.
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