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DOCKET NO. CV - 10- 6004566-S ASTORIA FEDERAL MORTGAGE CORP.

: :

SUPERIOR COURT JUDICIAL DISTRICT OF STAMFORD / NORWALK AT STAMFORD MARCH 11, 2012

VS: : JOHN SULLO, ET AL :

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS MOTION TO STRIKE AFFIDAVITS OF RICHARD G. FIKE AND JAMES D. STONECIPHER
The Defendant, John Sullo, in the above-captioned matter files the instant Memorandum Of Law In Support Of Defendants Motion To Strike Affidavits Of Richard G. Fike And James D. Stonecipher. It is elementary that a Court of Law should only entertain relying on facts and information contained in an affidavit where the affiant has personal knowledge. There is voluminous case law from around the country evidencing courts dismissing affidavits which do not survive the test of personal knowledge. Case law in Connecticut is consistent with the idiom that an affiant must hold first hand personal knowledge. In the Superior Court matter of Denise Farina v. Branford Board of Education, New Haven J.D. (CV10-5033085-S), Memorandum of Decision of Judge Robin L Wilson, May 27, 2010, the Court Granted Defendants Motion To Strike Plaintiffs Affidavit, as it was not based on personal knowledge. In entertaining the Defendants motion, the court noted that it raised the issue of the affidavits credibility, which affects how the court will consider plaintiffs argument. In the Plaintiffs affidavit, Mica Notz, the senior paralegal of the law firm representing the plaintiff, attests to statements made by Jane, who answered the telephone when Notz called the Branford town clerk's office. The Court found that the Affidavit consists of Hearsay. The Court further stated, the

(2) majority of the averments in the affidavit rely upon information obtained by Notz through Jane, not upon Notz's personal knowledge. In the Superior Court Matter of JP Morgan Chase Bank v. Michael Porzio, Stamford J.D., (CV09-5010388-S), Order of Judge Douglas Mintz, October 11, 2011, Defendants Motion To Strike Affidavit Of Lost Note was Granted. Defendant successfully argued that the Affiant, Christie H. Hill, did not make the claim to have personal knowledge. The Court agreed that Plaintiffs Affidavit was Hearsay. It was also found that Affiant failed to allege that she had personal knowledge of how the business records were kept at Washington Mutual, the predecessor bank. In the instant Astoria Federal Mortgage Corp. v. Sullo matter, both of the Affiants in the subject Affidavits Of Debt fail to allege what exactly they have personal knowledge of. Neither affiant makes any attestation that they have personal knowledge of the business records of Astoria Federal Mortgage Corp., how such records were kept, who in particular is the custodian of records, and whether affiants have any personal knowledge of any of the financial affairs of Defendant John Sullo. Defendant John Sullo argues and maintains, that an affiant cannot gain personal knowledge by a transfer of knowledge held and/or stated by someone else, such is hearsay. Hearsay means a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted. Connecticut Code of Evidence, 8-1(3). In the Superior Court Matter of Winkleman v. Dohm, Waterbury J.D. (CV92-096682S), Judge Barnet, April 27, 1992, (6 Conn. L. Rptr. 382), The court held that an affidavit in support of a motion to dismiss must meet the same requirements of an affidavit in support of a motion for summary judgment The statements contained in the affidavit must be based on personal knowledge.

(3) Defendant points out to the Court that, the very concept of an affidavit is a document stating facts within the knowledge of the affiant. See Friends of Animals, Inc. v. United Illuminating Co., Superior Court, judicial district of New Haven, Docket No. CV 06 4018257 (September 20, 2006, Skolnick, J.T.R.). Federal Law Many states, such as Florida [Rule 1.510(e)], and Kentucky [Rule CR 56.05] follow and adopt the principle and standard set forth in the Federal Rules Of Civil Procedure, Rule 56(e)(1): A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit. The court may permit an affidavit to be supplemented or opposed by depositions, answers to interrogatories, or additional affidavits. [emphasis added] A district court may properly hold that portions of or all of an affidavit attached to a motion for summary judgment is inadmissible because the affiant lacks personal knowledge or first hand information. See Bruno v. Plateau Mining Co., 747 P.2d 1055 (Utah App. 1987). See also, Murdock v. Springville Municipal Corp., 982 P.2d 65, 72 (UT App. 1999). In the foreclosure matter of GMAC Mortgage, LLC vs. Debbie Visicaro, ET AL (Case No: 07013084-CI) 6th Judicial Circuit Court in Pinellas County, Florida; Honorable Anthony Rondolino shed light on the issue of credibility of affiants and the so called Personal Knowledge Affidavits and other documents being filed in Florida foreclosure lawsuits. On April 7, 2010, Judge Rondolino in Court Hearing stated, I really honestly--I dont have any confidence that any of the documents the Courts receiving on these mass foreclosures are valid (transcript of Hearing, April 7, 2010, pg. 7, lines 11-14). Judge Rondolino further proclaimed on the court record, You

(4) know what Id really like to see? Id like to see in one of these cases where a defense lawyer cross-examines, takes a deposition of these people, and we can see whether they ought be charged with perjury for all of these affidavits (transcript of Hearing, April 7, 2010, pg. 15, lines 20-25). Unconscionability and fraud are grounds for withholding of foreclosure in Connecticut on equitable principles. Other equitable defenses that our Supreme Court has recognized in foreclosure actions include unconscionability New Haven Savings Bank v. LaPlace,(AC 21388)(2001). Where the plaintiffs conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles. Southbridge Associates, LLC v. Garofalo, supra, 15; see also Hamm v. Taylor, 180 Conn. 491, 497, 429 A.2d 946 (1980). The Defendant John Sullo maintains, pursuant to his constitutional rights afforded under the fourteenth amendment to the United States Constitution, that this honorable court uphold long standing principles and rules of evidence both found on a state level and in the mirrored Federal Rules of Evidence. Affidavits presented by any party to an action in Connecticut which are not based upon first hand personal knowledge simply are not admissible as valid evidence. Moreover, the attempt by persons who do not have any traceable employment history with and for the Plaintiff, claiming to have personal knowledge of the records, files, or accounting of Astoria Federal Mortgage Corp., and /or inferring to have knowledge of the affairs of John Sullo without any supporting factual foundational basis should be dismissed by this court, and such inequitable and prejudicial proceedings as well subject to dismissal as per established opinion and case law in Connecticut.

(5) WHEREFORE, for all the reasons as set forth above, the Defendants Motion To Strike Affidavits Of Richard G. Fike And James D. Stonecipher should be GRANTED, as this honorable court has no legal authority to accept as valid information, facts, and/or figures from any Affiant who does not hold any personal knowledge. The Defendant Respectfully Submitted,

By:______-042191-______________ Paul S. Nakian, Plaintiffs Attorney 90 Campbell Drive Stamford, CT 06903 Tel: 203-357-7777 - Office 203-356-9490 Fax Email: NakianLaw@aol.com Juris #042191

CERTIFICATION OF SERVICE The Defendant, John Sullo, hereby certifies that a true and correct copy of the foregoing Memorandum Of Law In Support Of Defendants Motion To Strike Affidavits Of Richard G. Fike And James D. Stonecipher has been furnished via U.S. First Class Mail on March 11, 2011 to the office of the Plaintiffs counsel, Bishop, Jackson & Kelly, LLC, at the address of 472 Wheelers Farm Road, Milford, CT 06461.

Certification Of Service By The Defendant: -042191________________________________ John Sullo by his Attorney Paul S. Nakian, Esq.