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, FSB, Plaintiff, v. JANE DOE, et. al., Defendants. ____________________________________/ DEFENDANT JANE DOE’S OBJECTION TO MOTION FOR SUMMARY JUDGMENT Upon information and belief in the above-referenced paragraphs, granting Plaintiff’s Motion for Summary Judgment prior to resolution of Defendants Motion to Dismiss, prior to Plaintiff providing the requested discovery and prior to resolving the disclosed issues of fact would be improper and premature as there are still clear issues of fact which preclude a proper summary judgment at this time, including the material and pertinent issue of whether Plaintiff has proper standing to bring this action. MEMORANDUM OF LAW In the state of Florida, there is extensive established law that prevents summary judgment from being granted when there are outstanding issues of material fact. Johnson v. Boca Raton Community Hosp., Inc., 985 So.2d 141, Murphy v. Young Men’s Christian Association of Lake Wales, Inc., 974 So.2d 565. A “material fact,” for summary judgment purposes, is a fact that is essential to the resolution of the legal questions raised in the case, Continental Concrete, Inc. v. Lakes at La Paz III Ltd. Partnership, 758 So.2d 1214. “Under the Florida state court procedure, the existence of any competent evidence creating an issue of fact, however credible or incredible, substantial or trivial, stops the inquiry and precludes summary judgment, so long as the “slightest doubt” is raised” West’s Florida Practice Series, 4 Fla. Prac., Civil Procedure R. 1.510(2008-2009 ed.). Dreggors v. Wausau Ins. Co., 995 So.2d 547, held that on a motion for summary judgment, unless and until material facts at issue presented to the trial court are so crystallized, conclusive, and compelling as to leave nothing for the court’s determination but questions of law, those facts, as well as any defenses, must be submitted to the jury for resolution. Christian v. Overstreet Paving Co., further explains that if the record reflects the existence of any genuine issue of material fact, or possibility of issue, or if the record raises even the slightest doubt that an issue may exist, summary judgment is improper, 679 So.2d 839. In the summary judgment proceeding, the movant bears the burden at all times of clearly and unequivocally establishing right of summary judgment, and judgment may not be granted if any controverted issue of material facts exists or if proofs supporting Case No.: 2009-CA-XXXX
2d 330.2d 561.” RNR Investments Ltd. and it is reversible error to enter summary judgment when discovery is in progress and the deposition of a party is pending. In the motion for summary judgment hearings. where discovery is still pending. Kemper v. and that summary judgment is thus proper. Smith.2d 1126. court’s order. 43-44 (Fla. 631 (Fla. Harvey Building. Henderson v. 1st DCA 1993). were in fact true. if a sufficient defense. or otherwise upon which court could have determined that answers in allegation. Star. Metal Products Corp. Peoples First Community Bank. under pleadings. the doubt must be resolved against the moving party and summary judgment must be denied. 1144 (Fla. 696 So. Where discovery is not complete. 3d DCA 1973). 702 So. if uncontroverted evidence is lawfully susceptible of two or more conflicting inferences. which explains that “where there are numerous issues on questions of fact and nothing in record before court by way of deposition. could not be sustained. Star. First Nat'l Bank of Dayton. “If the record reflects even the possibility of a material issue of fact. affidavit. or if different inferences can be drawn reasonably from the facts. 191 So. 1966). 2d 804 (Fla. 616 (Fla. 693 So. 2d 610.2d 545. Talcott. Ohio. 83 So. 639 (Fla. The mere fact that Defendant did not raise factual issues through affidavit in opposition prior to hearing on motion for summary judgment should not preclude Defendant from being able to assert those issues of fact at the hearing. the doubt should be resolved in favor of the nonmoving party. Southern Bell. 510 So. 277 So. 812 So.2d 9. 682 So. 5th DCA 1999)("Parties to a lawsuit are entitled to discovery as provided in the Florida Rules of Civil Procedure including the taking of depositions. Stick. the facts are not sufficiently developed to enable the trial court to determine whether genuine issues of material facts exist.. Kuruvilla.. The “mere fact that evidence concerning intent of parties is uncontroverted does not necessarily mean that there is no genuine issue as to this material fact. Hupert.). 2d 1142. 168 So. but rather should be left to the jury to determine whether a preponderance of the evidence supports the inferences suggested by the moving party. 745 So.2d 937.” It is axiomatic that Summary Judgment may not be granted unless the moving party is able to show that no genuine issues of material fact exist. Corbitt v. 2d 40. 2d 616. admission. Singer v. 3d DCA 1997)(reversing the entry of Summary Judgment where depositions had not been completed and a request for the production of documents was outstanding. A case which further establishes the standard for necessary documents in evidence is Flaherty v. 622 So. 4th DCA 1987).motion fail to overcome every theory upon which. Thus. See Holl v. . Existence of a reasonable inference contrary to that asserted by the non-moving party should not result in the entry of summary judgment. Haley v. Partnership v. Spradley v. adversary’s position might be sustained. 2d 631. 734 So. See Singer v. 2d 637 (Fla. Inc. 613 (Fla. Gawel. 4th DCA 1987). 3d DCA 1997) (holding that a trial court should not entertain a motion for summary judgment while discovery is still pending). Reyes. (even where facts are uncontroverted. if there is any doubt about the possibility of material issues of fact."). See Smith v. the entry of Summary Judgment is premature.” Marshall v. Collazo v. summary judgment is not available if different inferences can be reasonably drawn from uncontroverted facts) Albelo v. 510 So. 2d 637. even if construed as final summary judgment holding there was no issue of material fact.
but rather to determine whether any genuine issues of material fact exist. Defendant is an expert at recognizing her signature. Respectfully Submitted. 62 So. City of Lake City. She closely examined her alleged signature on the document in the court file and found that to be lacking in authenticity as her original signature would leave an impression in the paper. 623 In short. WHEREFORE. The copy and the original were made of the same paper – same weight. Trust Fund v. v. 189 So. Williams v. Additionally. Additionally.O. not blue. Inc. color. feel. January 22. Defendant prays that this Honorable Court deny Plaintiff’s Motion for Summary Judgment and for such other and further relief as this Honorable Court deems necessary and just. (Exhibit A. Lord. Defendant's recollection is that a black ink pen was used to sign her name. See Sica v.2d 361.In ruling on a motion for summary judgment. FL 32754 321-264-9624 Office 321-383-1105 Fax . “Parties to a lawsuit are entitled to discovery as provided in the Florida Rules of Civil Procedure. Box 838 Mims. including the taking of depositions. which is not present in the document in the court file. summary judgments should be sparingly granted and only in those cases where there remains no genuine issue of any material fact. The one in the court file is on clearly different paper than the copy. 203 So. Defendant compared that document to the copy of mortgage loan documents that she received at the time of closing which are still in her possession. as is reflected in the document in the court file. Defendant contends that the actual promissory note that is in the courts file is not the original and is a fraud. the court must deny the motion. Defendant viewed the document in the court file that is alleged to be the original note. and if so. Trustees of Internal Imp.. 2010. On January 21. 879533 P. see also Jack Drury & Associates. and it is reversible error to enter summary judgment when discovery is in progress and the deposition of a party is pending. Affidavit of Defendant JANE DOE . as the court states in Williams. and if there are issues of fact and the slightest doubt remains. look and size. 2010 ______________________ George Gingo. a summary judgment cannot be granted. City of Fort Lauderdale. In addition to the issues raised by the Defendant's pending discovery and motion to dismiss.2d 732. the court is not to resolve conflicting issues of fact. Sam Calliendo Design. Inc.2d 534.
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been furnished by U. this 22ND day of January. Mail. Fort Lauderdale. Suite 120. 1800 N.W.S. 49th Street. FL 33309. ______________________________ George Gingo . to Anissa Bolton. 2010.
JANE DOE. This declaration is based upon my personal knowledge. 4. When I closely examined “my” alleged signature on the document in the court file I found it to be lacking in authenticity as my original signature would leave an impression in the paper. 2. I am an expert at recognizing my signature. I found that the copy and the original were made of the same paper – same weight. look and size. When I viewed the alleged note in the court file I found it is on clearly different paper than the copy. 2010. FSB. IN AND FOR VOLUSIA COUNTY INDYMAC FEDERAL BANK. 3. On January 21. Additionally.IN THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT OF FLORIDA. ____________________________________/ Case No. JANE DOE . Additionally. et. I compared that document to the copy of mortgage loan documents that I received at the time of closing which are still in my possession. not blue. color. feel. at which time I very carefully compared the copy to what was to be the original.. I was given the copy at the closing. I viewed the document in the court file that is alleged to be the original note. which is not present in the document in the court file. Defendants. Plaintiff. I am the defendant in this action. as is reflected in the document in the court file. v. . hereby swear as follows: 1. and if called upon as a witness in this matter I could competently testify to the facts as set forth below. my recollection is that I signed in black ink.: 2009-CA-20189 CINS AFFIDAVIT EXHIBIT A TO DEFENDANT JANE DOE’S OPPOSITION TO MOTION FOR FINAL SUMMARY JUDGMENT I. al.
______________________ JANE DOE STATE OF FLORIDA COUNTY OF VOLUSIA ) ) Sworn to or affirmed and signed before me on January 22. by JANE DOE . 2010. I believe that the alleged note in the court file contains a forgery of my signature and the document is fraudulent. I understand that I am swearing or affirming under oath to the truthfulness of the claims made in this petition and that the punishment for knowingly making a false statement includes fines and/or imprisonment.5. ___________________________ NOTARY PUBLIC _____Personally known _____Produced Identification Type of identification produced _________________________________ .
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