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MEMORANDUM OF LAW

TO: Matthew Weidner, Esq.
FROM: Michael Fuino
RE: Essential Requirements of Affidavit Filings

ISSUE PRESENTED AND INTRODUCTION ANALYSIS

I have researched your question regarding the essential requirements of affidavit filings
and have found, as a threshold matter, that Fla. R. Civ. Pro. 1.510(e) sets out the formal
requirements for such filings. This rule reads, in whole, that
[s]upporting 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. The court may permit affidavits to
be supplemented or opposed by depositions, answers to interrogatories, or by
further affidavits.

Thus, when a supporting affidavit does not comply with the requirements that it: (1) be made on
personal knowledge; (2) set forth such facts as would be admissible in evidence; and (3) show
affirmatively that the affiant is competent to testify to the matters stated therein, it is legally
insufficient to support the entry of summary judgment in favor of the moving party. See
Enterprise Leasing Co. v. Demartino, 15 So. 3d 711 (Fla. 2d DCA 2009).
SECOND DISTRICT RULINGS INVALIDATING AFFIDAVITS
There have been several rulings by the Second District which expressly held that
affidavits submitted to the trial court were incompetent. In West Edge II v. Kunderas, 910 So.
2d 953 (Fla. 2d DCA 2005), a vendor of residential property brought suit against a purchaser to
reform the deed and mortgage to that property. On the basis of the vendors affidavit, the Circuit
Court of Pasco County granted summary judgment in favor of the vendor. On appeal, the
Second District held that the vendors affidavit was not based on personal knowledge because
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the affidavit contained the vendors opinion about what the sale contract did or did not include,
and because the vendor did not have personal knowledge of what the purchaser knew or did not
know. Moreover, the Second District held that the vendors affidavit in no way refuted the
purchasers affirmative defenses.
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As the affidavit did not contain the vendors personal
knowledge nor refuted the purchasers affirmative defenses, the Second District ruled that the
Circuit Court improperly entered summary judgment in favor of the vendor and reversed and
remanded for further proceedings in accordance with the opinion. Id at 955.
In In re Forefeiture of 1998 Ford Pickup, Identification No. 1FTZX1767WNA34547, 779
So. 2d 450 (Fla. 2d DCA 2000), the Hillsborough County sheriff filed a forfeiture action
involving a motor vehicle used by a motorist who allegedly exposed himself to two underage
girls. The Sheriffs Office moved for summary judgment on the basis of a Sheriffs Office
detective who averred that he investigated the alleged lewd act by the motorist and was
personally present at the time and place of the arrest and seizure of the vehicle. The Circuit
Court of Hillsborough County granted the Sheriffs Offices motion for summary judgment on
but the Second District reversed, holding that the affidavit was incompetent on its face as the
affiant: (1) did not have personal knowledge of the events as he was not an eyewitness to the
offense since he arrived after the alleged conduct occurred and his statements were therefore the
product of hearsay statements from the two underage girls; (2) was not component to testify since
he was not present when the acts occurred; and (3) his statements were inadmissible as evidence
as they were hearsay statements for which no exception applied. Id at 451. Therefore, the

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This is important because party seeking summary judgment must not only show that there is no genuine issues of
material fact, but must also factually refute any affirmative defenses or show that they are legally insufficient. See
Morroni v. Household Fin. Corp. III, 903 So. 2d 311, 312 (Fla. 2d DCA 2005); J ones v. City of Winter Haven, 870
So. 2d 52, 55 (Fla. 2d DCA 2003).
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Second District ruled it was an error to grant summary judgment in favor of the Sheriffs Office
and reversed and remanded for further proceedings.
Finally, in Zoda v. Hedden, 596 So. 2d 1225 (Fla. 2d DCA 1992), an ex-wife and her
present husband filed a complaint to quiet title to certain parcels of land which had been subjects
of a property settlement agreement entered into at the time of the divorce between the ex-wife
and her ex-husband. In support of their motion for summary judgment, the ex-wife and her
present husband relied upon an affidavit by their trial counsel which purported to establish the
alienation of a parcel of land which alienation, under the terms of the settlement agreement,
would operate to vest the ex-wifes remainder interest in the parcels involved in the action. In
his affidavit, the trial counsel stated that he had examined the public records and had personal
knowledge of the facts sort forth in the affidavit. The Circuit Court of Pinellas County granted
the ex-wife and her present husbands motion for summary judgment and the ex-husband
appealed. The Second District held that the trial counsels statements were not facts upon which
has personal knowledge was based except for his review of the public records; since there were
no certified copies of the public records attached to the affidavit
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and because the trial counsel
was not a custodian of public records, the Second District ruled that the trial counsel was
incompetent to testify and the statements contained within the affidavit were inadmissible
hearsay. Id at 1226. Therefore, the Court concluded that since the affidavit was invalid on its
face, it was an error for the Circuit Court to grant summary judgment to the ex-wife and reversed
and remanded for further proceedings.
AFFIDAVITS DEEMED INVALID IN FORECLOSURE ACTIONS
Recently, several bankruptcy court judges have issued orders which have penalized both
plaintiffs and plaintiff attorneys of foreclosure lawsuits for filing false affidavits on behalf of

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Authentication of evidence is a condition precedent to its admissibility. See Fla. Stat. 90.901 (1989).
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their clients. For example, J udge J ohn Olson of the U.S. Bankruptcy Court for the Southern
District of Florida, recently imposed sanctions on plaintiff law firm Florida Default Law Group,
P.L. to the amount of $95,130.45 for preparing false affidavits in some 50 foreclosure cases. See
In re: Fazlul Haque, Order Granting Wells Fargo Bank, N.A.s Motion for Relief from Stay and
Imposing Sanctions for Negligent Practice and False Representations, No. 08-14257-BKC-J KO
(Bankr.S.D. Fla. Oct. 28, 2008). Additionally, the District of South Carolina penalized the law
firm of Butler & Hosch, P.A. and its attorneys Rebecca Goldberg Shiver and J ason Branham for
the same conduct. See In re: Deborah J oann Ulmer and Isaiah Ulmer, Order on a Rule to Show
Case, No. 05-45096-W (Bankr. S.C. J an. 23, 2007).
There appear to be no appellate decisions which are factually similar to our situation.
However, one case which somewhat approaches our issues is Stanley v. Wells Fargo Bank, 937
So. 2d 708 (Fla. 5
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DCA 2006). There, Stanley appealed a summary judgment in favor of Wells
Fargo arguing that the pleadings and evidence of record failed to substantiate the lenders
ownership of the note and mortgage. The Fifth District rejected this argument because: (1) Wells
Fargo filed the original note and mortgage with the court; (2) Wells Fargo averred in its affidavit
to ownership of the note and mortgage; and (3) the record contained an assignment of the note
and mortgage to Norwest Bank Minnesota, N.A., and printouts from the comptrollers office
which showed various name changes undergone by Norwest so that it is now known as Wells
Fargo Bank. Id. While the Court noted that the information from the comptroller was not in
affidavit form, it reasoned that since the record contained no transcript of the hearing they could
not know if any objection was made to the trial courts consideration of that information and
therefore they must assume that the trial court properly considered it. Id.

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CONCLUSION
Affidavits submitted to courts for consideration must meet a three-prong test in order to
be deemed competent, specifically: (1) they must be based on personal knowledge; (2) they must
set forth such facts as would be admissible in evidence; and (3) they must show affirmatively
that the affiant is competent to testify to the matters stated therein. Those which do not meet
these requirements are considered insufficient to support the entry of summary judgment in favor
of the moving party and the Second District has expressly held this in at least three cases. While
there appear no appellate decisions in which plaintiffs of a mortgage foreclosure lawsuit have
filed false affidavits, bankruptcy judges in both the Southern District of Florida as well as the
District of South Carolina have penalized both plaintiffs and plaintiff attorneys alike for doing
so.