You are on page 1of 7

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI DADE COUNTY, FLORIDA JP MORGAN CHASE

BANK, NA, PLAINTIFF, CASE NO: 09-29997-CA-11 v. EDUARDO OROZCO, ET AL., DEFENDANTS. _____________________________________ GREAT FLORIDA BANK, CROSS-PLAINTIFF, v. EDUARDO OROZCO, ET AL., CROSS-DEFENDANTS. ______________________________________/ MEMORANDUM IN OPPOSITION TO MOTION FOR JUDGMENT AND MOTION TO STRIKE AFFIDAVIT OF INDEBTEDNESS NOW COME Eduardo Orozco, et al. (Cross-Defendants herein), by and through undersigned counsel, who hereby submit this Memorandum in Opposition to Cross-Plaintiff's Amended Motion for Summary Judgment and move this Court to Strike the Second Amended Affidavit of Indebtedness; in support thereof, Cross-Defendants state as follows: LEGAL STANDARDS MOTION FOR SUMMARY JUDGMENT IMPLIES HEAVY BURDEN ON MOVANT 1. Per Fla. R. Civ. Pro. 1.150(c), the successful motion for summary judgment must demonstrate that there are no genuine issues of any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). MEMORANDUM IN OPPOSITION TO MOTION FOR JUDGMENT AND MOTION TO STRIKE AFFIDAVIT OF INDEBTEDNESS

2. Regarding summary judgments, the Court must draw every possible inference in favor of the non-moving party. Kitchen v. Ebonite 6 Recreation Ctrs., Inc., 856 So.2d 1083, 1085 (Fla. 5th DCA 2003). 3. The slightest doubt will bar an entry of summary judgment. Mivan (Fla.), Inc. v. Metric Const., Inc. 857 So.2d 901, 902 (Fla. 5th DCA 2003). 4. In view of the potentiality for encroaching on rights of parties, the power to enter judgment summarily should be exercised with caution. Jones v. Stoutenburgh, 91 So.2d 299 (S.Ct. 1957). MOTION TO STRIKE AVAILABLE TO CROSS-DEFENDANT 5. Fla. R. Civ. P. 1.140(f) reads as follows: A party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time. ARGUMENT: CROSS-PLAINTIFF HAS NOT DEFINITIVELY SHOWN CROSS-DEFENDANT TO BE IN DEFAULT 6. Cross-Plaintiff relies exclusively on a single Second Amended Affidavit of Indebtedness as evidence of default; said Affidavit will be shown as insufficient. 7. The Authors Comment to 1.510(e) notes: Affidavits are the weakest form of evidence and are not ordinarily admissible at trial. Their function is to show that there is available competent testimony which can be introduced at trial. 8. And according to Holl, A movants affidavits need be viewed strictly as a matter of practice. Holl v. Talcott, 191 So.2d 40 (S.Ct. 1966). 9. Fla. R. Civ. P. 1.510(e) reads: Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. 10. Cross-Plaintiffs Affidavit fails as does not comport with Fla. R. Civ. P. 1.510(e), in that: 1) Affidavit bears no indication of personal knowledge, 2) said Affidavit contains inadmissible material, 3) the competency of Affiant is questionable, and 4) the documentation on which the Affidavit relies is insufficient and erroneous.

11. Cross-Plaintiffs Affidavit in support of its Motion for Summary Judgment does not conclusively establish beyond the slightest doubt that no genuine issues of material fact exist. 12. Cross-Plaintiff has failed to meet its burden so that its Motion for Summary Judgment should be denied. AFFIDAVIT BEARS NO INDICATION OF PERSONAL KNOWLEDGE 13. Cross-Plaintiffs Second Amended Affidavit of Indebtedness states, Affiant has personal knowledge of the facts and matter stated herein and Affiant makes this Affidavit based upon his personal knowledge of the facts involved in this case. Affidavit, Paragraphs 1 and 3. 14. Simply stating that an affidavit is made on personal knowledge, however, is legally insufficient. Carter v. Cessna Fin. Corp., 498 So.2d 1319, 1320 (Fla. 4th DCA 1986); Hoyt v. St. Lucie County, Board of Commissioners, 705 So.2d 119, 120 (Fla. 4th DCA 1998). 15. The Authors Comment to 1.510(e) states: There should be stated in detail the facts showing that [Affiant] has personal knowledge. 16. Similarly, case law requires a measure of detail so as to support a claim. Florida Dept. of Fin. Servs. v. Associated Indus. Ins. Co., Inc., 868 So.2d 600 (Fla. 1st DCA 2004); Hoyt v. St. Lucie County, Bad. Of County Comm'rs, 705 So.2d 119 (Fla. 4th DCA 1998); Carter v. Cessna fin. Corp., 498 So.2d 1319 (Fla. 4th DCA 1986). 17. Here, the detail required is absent from the Affidavit; Plaintiff recites the amounts allegedly due and vaguely states that Affiant knows and is familiar with the identity and method of preparation of the business records attached to this Affidavit. Affidavit, Paragraph 5. AFFIDAVIT CONTAINS INADMISSIBLE MATERIAL 18. Cross-Plaintiffs Affidavit is composed exclusively of statements of ultimate fact, legal conclusions, and hearsay. 19. Regarding statements of ultimate facts, such statements are of no weight in an affidavit. Dean v. Gold Coast Theatres, Inc., 156 So.2d 546 (Fla. 2d DCA 1963). 20. Cross-Plaintiff asserts that On or about November 4, 2005, Cross-Defendant executed and delivered to Cross-Plaintiff an Equity Credit Line, Great Florida owns and holds 3

the Equity Credit Line, Great Florida Bank declares the full amount payable under the Equity Credit Line to be due, and OROZCO owes Cross-Plaintiff, Great Florida Bank the following without providing any real evidence of such. Affidavit, Paragraphs 7, 10, 12, and 13. 21. These are mere recitations of statements made in Cross-Plaintiffs Complaint and, as such, are insufficient. Thompson v. Citizens Natl. Bank of Leesburg, 433 So.2d 32, 33 (Fla. 5th DCA 1983). 22. Similarly, an affidavit cannot be based on conclusions of law. Hurricane Boats, Inc. v. Certified Indus. Fabricators, Inc., 246 So. 2d 174 (Fla. 3rd DCA 1974); Deerfield Beach Bank v. Nager, 140 So. 2d 120 (Fla. 2d DCA 1962); Jones Constr. Co. of Central Florida, Inc. v. Florida Workers' Comp. JUA, Inc., 793 So. 2d 978, 979-80 (Fla. 2nd DCA 2001). 23. Beyond asserting such matters as personal knowledge, Cross-Plaintiff assertions include that he is authorized on behalf of Cross-Plaintiff and that business records are true and correct and made in the ordinary course of business, without laying an adequate foundation or providing evidence of such. Affidavit, Paragraphs 1, 2, 3, 5, 7. 24. Beyond statements of ultimate fact and conclusions of law, hearsay evidence is also inadmissible pursuant Fla. R. Civ. P. 1.510(e), Fla. Stat. 90.802 and case law. Warden v. Chase Manhattan Bank, USA, N.A., 872 So. 2d 432 (Fla. 4th DCA 2004); Ham v. Heintzelman's Ford, Inc., 256 So. 2d 264 (Fla. 4th DCA 1972). 25. Affiant indicates the information relied upon was provided him by persons with personal knowledge: The source of the information was an individual or individuals, in addition to a computer database, whose business duties involve furnishing this information to Cross-Plaintiff. Affidavit, Paragraph 5. 26. Cross-Plaintiff labels his records business records, perhaps to suggest that these records are admissible as an exception to the general rule against hearsay. Fla. Stat. 90.803(6). These records are not, however, exceptions. 27. When considering business records in support of summary judgment evidence, the trial court must first determine the admissibility of such records. Thompson v. Citizens Natl Bank of Leesburg, 433 So.2d 32, 33 (Fla. 5th DCA 1983) (whereby the court reversed a

summary judgment that had been based on an affidavit relying on business records, without having laid the foundation for the admissibility of such). 28. Business records must be under affiants supervision and control and produced in the normal course of business. Johnson v. DHRS, 546 So.2d 741, 743 (Fla. 1st DCA 1989). 29. Beyond meekly alleging custody of the original records and files, Affiant does not even begin to explain the means by which the records at issue have been kept under his supervision and control. Affidavit, Paragraph 6. 30. Additionally, the Affidavit at issue states boilerplate recitations: [B]usiness records of Cross-Plaintiff upon which this Affidavit was based were made at or near the time of the events recorded therein Such business records are kept in the ordinary course of Cross-Plaintiffs business to maintain such records. It is a regular practice of Cross Plaintiffs business to maintain such records. The contents o f this Affidavit are predicated upon Affiants examination of such records. Affidavit, Paragraph 5. 31. Cross-Plaintiff fails to establish the admissibility of the business records relied upon, in that the records are not proven to be under the affiants supervision and control and that, beyond the boilerplate assertion, Affiant does not explain how or why the record was produced in the normal course of Cross-Plaintiff business. COMPETENCY OF AFFIANT IS QUESTIONABLE 32. Cross-Plaintiffs Affidavit asserts that Affiant is Assistant Vice President of Great Florida Bank, and that Affiant is authorized to make this Affidavit. Affidavit, Paragraphs 1, 2. 33. However, the role of an Assistant Vice President and the specific source of Affiants alleged authority remains obscure. 34. Even still, the conclusory statement that Affiant is familiar with the identity and method of preparation of the business records of Cross-Plaintiff is blatantly insufficient. Affidavit, Paragraph 5. Alexander v. Allstate Ins. Co., 388 So.2d 592, 593 (Fla. 5th DCA 1980); Mastan Co., Inc. v. American Custom Homes, Inc., 214 So2d 103 (Fla.2d DCA 1968); Holt v. Grimes, 261 So.2d 528 (Fla. 3d DCA 1972). 35. Additionally, bare mention of Affiants educational and vocational background, a job description, and the manner by which Affiant calculates or derives his or her information seems appropriate. 5

DOCUMENTATION ON WHICH AFFIDAVIT RELIES IS INSUFFICIENT AND ERRONEOUS 36. Fla. R. Civ. P. 1.510(e) requires the following: Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. 37. Attached to the Second Amended Affidavit of Indebtedness are two items: a. A copy of the Discounted Rate Home Equity Credit Line Interest-Only Consumer Open-End Agreement (Equity Credit Line); and b. An untitled computer print-out that Cross-Plaintiff has labeled a loan payoff statement. 38. The Equity Credit Line and print-out screen-shot attached to Cross-Plaintiffs Affidavit are neither sworn, nor certified, in direct violation of Fla. R. Civ. P 1.510(e) and Fla. Stat. 90.901. 39. Affiant does not identify or include any backup documentation or books and records kept by GREAT FLORIDA BANK 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. 40. The instant business records and files, being but that single sheet computer print-out, differs as to the amounts allegedly owed from documentation that is currently in possession of Cross-Defendant. ARGUMENT: AFFIDAVIT OF INDEBTEDNESS NEED BE STRICKEN 41. Based on the foregoing, Affiant does not demonstrate personal knowledge, the evidence upon which he relies is inadmissible, his competency is questionable, and the documentation he attaches is insufficient and erroneous. 42. Pursuant Fla. R. Civ. P. 1.140(f), as Affidavit is redundant, immaterial, impertinent, and scandalous, Cross-Defendant asks that the above-referenced Second Amended Affidavit of Indebtedness be stricken from the docket. 43. Upon knowledge and belief, Cross-Defendants aver that Cross-Plaintiff, Cross-Plaintiffs attorneys and/or Cross-Plaintiffs agents have fabricated documents in violation of Fla. Stat. 831.06; specifically, Defendants allege the falsification of the Affidavit submitted this Court.

44. Cross-Defendants ask the Court to take notice of the alarming pattern and practice of falsifying documents and committing fraud on this Court in an attempt to wrongfully deprive parties of their property.

CERTIFICATE OF SERVICE The undersigned certifies that a true and accurate copy of the foregoing Memorandum in Opposition to Amended Motion for Judgment and Motion to Strike Affidavit of Indebtedness has been sent by ordinary U.S. mail to Jessica L. Berman, Esq., Greenspoon Marder, P.A., 100 West Cypress Creek Rd. #700, Ft. Lauderdale, FL 33309; Florencia Engle, Esq., Ben-Ezra, P.A., 2901 Stirling Rd. # 300, Ft. Lauderdale, FL 33312; and to the Miami-Dade Clerk of Courts, 73 W. Flagler St., Miami, FL 33130 this ____ day of June, 2011.

___________________________ Joann M. Hennessey, Esq. Attorney for Defendant Law Offices of Joann M. Hennessey FBN: 0192465 620 NE 76th Street Miami, FL 33138 T: 305 200 5115 C: 305 710 8366 F: 305 200 3664 joann@lojmh.com