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Motion to Strike Affidavit in support of summary judgment- no personal knowledge (Amended)

Motion to Strike Affidavit in support of summary judgment- no personal knowledge (Amended)

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Published by Melva Harris Rozier

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Published by: Melva Harris Rozier on Mar 02, 2011
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07/28/2013

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THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA Case: 502010CA002938XXXXMB

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.

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). Ins. Boney. Florida Dept. Inc. Associated Indus. Inc. 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.2d 119 (Fla. Furthermore..802 (2009).952(2009). Of County Comm'rs. F. nor does she allege the basis of her knowledge regarding the loan at issue. an affiant should state in detail the facts showing affiant has personal knowledge. hearsay testimony concerning the contents of business records is not admissible unless original business records have been introduced. Accordingly. Id. 498 So.Affiant does not represent that she is Records Custodian for Plaintiff. 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. 1st DCA 2004). Thompson v.801(1)(c) and 90. Bad.2d 1319 (Fla. Avatar Props. v.. and except as provided by statute. Cessna fin. 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...S. Co. Servs. 705 So.S. Corp. 868 So. 494 So. 2nd DCA 1986) (Affidavit legally insufficient where affiant clearly incapable of having personal knowledge of facts at issue in case).2d 600 (Fla. 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). 2d 289 (Fla. In Florida. §§ 90. St. Carter v. of Fin. v. Citizens . Further. hearsay evidence is inadmissible. Hoyt v. F.. Affiant does not represent the basis of her "actual and personal knowledge" of the facts contained in her affidavit. § 90. Lucie County.

140 So. 327 So. should be disregarded by the trial court. Inc. 3rd DCA 1976). 2nd DCA 2000). Affidavits should set forth facts which would be admissible at trial. 2d 174 (Fla. Further.510(e) in that it does not attach the requisite sworn or certified copies of all papers or parts referred to in the affidavit. Inc. 2d 264 (Fla. Henderson. First Mortg Investors. JUA. Jones Constr. that the allegations in the complaint are true and correct. 2D DCA 1962). 2d 120 (Fla. Gold Coast Nor can an Affidavit be based on conclusions of law. Nat. 2d 450 (Fla. Civ. Wms v. 246 So.Nat'l Bank of Leesburg. such as hearsay or opinion testimony. 433 So. Co. Chase Manhattan Bank. P. Florida Workers' Comp. the affidavit of CAROLYN WHITE does not comport with Fla. of Central Florida. v. 979-80 (Fla. Warden v. 872 So.. 256 So. USA. Theaters. 2d 432 (Fla. v. R. 2D DCA 1963). 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. Allegations in an affidavit that set forth incompetent and inadmissible matters. 3rd DCA 1974).). See also. Inc.A. 793 So. Inc. 4th DCA 2004). Ham v. Dean v. 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. Certified Indus. Blvd. 2d 546 (Fla. Bank of Miami. 156 So. Nager. 2d 978. and that Defendant’s owes . v. Inc. Hurricane Boats. Fabricators. 2nd DCA 2001)(affidavit that states only that affiant has personal knowledge of the facts. N. Deerfield Beach Bank v. that would be inadmissible at trial. 2d 32 (Fla. Heintzelman's Ford. 779 So... 2d 830 (Fla. 1..) Affidavits may not be based on allegations of ultimate facts. Inc.

2nd DCA 1972) (attorney's affidavit stating that he was familiar with client's records and the records reflect certain information constituted inadmissible hearsay).. was unable to authenticate documents referred to in his affidavit). Nour v. 576 So. 2d 906 (Fla. and consequently. 3rd DCA 1966) (court rejected Plaintiff's affidavit that Defendant’s acknowledged debt in writing where Plaintiff failed to attach letters from Defendant’s).312 is legally insufficient as affidavit failed to set forth any evidentiary facts that would be admissible in evidence). v. 2d 787 (Fla. based on the abundance of case law sited above. Inc. 660 So. sets forth facts and/or conclusion where she clearly was incapable of having personal knowledge of facts at issue in case. CSX Transp. the affiant must attach the document to the affidavit. 1st DCA 1991). 1st DCA 1986). sets forth hearsay or opinion testimony that would be inadmissible at trial. 268 So. Rowland v. 2d 47. 2d 1204 (Fla. Paxon Elec. In conclusion. 2d 757 (Fla. See. 596 So. fails to attach the records upon which her affidavit is based. and. Topping v. Pasco County. 2d 1225 (Fla. All State Pipe Supply Co. Crosby v.671.. deeds. Co. appeal after remand. Zoda v. Hotel George V.plaintiff $3.. 487 So. sets forth legal conclusions and opinion testimony. sets for no facts showing she has personal knowledge. Moreover an affidavit that amounts to nothing more than a statement by affiant that the allegations in the complaint are true similarly is insufficient.2nd DCA 1992) (attorney not competent to testify in affidavit as to property transactions reflected in settlements. Wolf. Hedden. 2d 388 (Fla. and judgments contained in public records. but failed to attach reports to affidavit). 1st DCA 1988). the Affidavit of CAROLYN WHITE must be stricken as it is not based on personal knowledge. 49 (Fla. even though those records were . 2nd DCA 1995) (court reversed summary judgment where witness based statements on reports. Finally. 534 So. 192 So. since attorney was not custodian of public records. when a document supplies the basis for an affiant's personal knowledge.

CAROLYN WHITE. P. City of Miami. not her. CONCLUSION The purpose of a summary judgment is to avoid the expense and delay of trial where no dispute exists concerning the material facts. 2010 MELVA ROZIER. Robinson v.2d 718 (Fla. Thomas Jefferson once warned that “banking establishments are more dangerous than standing armies”.2d 741 (Fla.com By: ________________________________________ MELVA HARRIS-ROZIER. Irrefutably. FL 33407 (561)840-1344 Telephone (561)840-1535 Fax E-mail: Melvarozier@aol. Suite 6 West Palm Beach. 177 So. 71 So. 3d DCA 1965). If the laws and rules of this state be any particular fashion wrong. Based on the foregoing.A 801 North Point Parkway. is not competent to testify to the matters stated in the affidavit. in summary judgment appeals every attempt will be made by the appellate court to reverse the summary judgment. Avila and Pedro Falcones Florida Bar Number: 0901121 . 1954). the affidavit shows that the Affiant. National Airlines v. 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.created by other people with personal knowledge. 1Dated: October 6. Clearly. the Defendants respectfully requests that the Plaintiff’s Motion for Summary Judgment be denied and the Affidavit of CAROLYN WHITE be stricken. Florida Equipment Company of Miami. The record is reviewed in the light most favorable toward the party against whom the summary judgment was entered. Attorney at Law Counsel for Defendant Zoila J.

A. 2010 to: Ron G. Fax (954) 382-5380. By: ________________________________________ Melva Harris-Rozier . Esq. FL 33324. 8201 Peters Road. Rice..S. P. Ste.CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and accurate copy of the above has been furnished by facsimile and U. 3000. mail on October 6. Kahane & Associates. Jr. Plantation.

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