IN THE CIRCUIT COURT, 15th JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO: 2009-CA-037188

BANKUNITED, ASSIGNEE OF THE FDIC AS RECEIVER FOR BANKUNITED FSB Plaintiff v. ANDREW SCOTT REALTY CORP., et al, Defendant ___________________________________/ MOTION TO STRIKE AFFIDAVIT OF AMOUNTS DUE AND OWING OF LORI SILER COMES NOW DEFENDANT, ANDREW SCOTT REALTY CORP., by and through the undersigned attorney, and moves this Court to strike the Plaintiff's Affidavit of Amounts Indebtedness executed by Lori Siler for the reasons set forth below: 1. In support of its Motion for Summary Judgment, Plaintiff filed the Affidavit of

Indebtedness (“Affidavit”) executed by Lori Siler (“Affiant”). 2. Lori Siler is a Foreclosure Specialist in the Default Administration Department at

BankUnited, assignee of the FDIC, as receiver for BankUnited FSB. 3. 4. The original lender of the Defendant’s loan was BankUnited FSB.i Affiant is not competent to testify to the matters stated within her Affidavit. See

Fla.R.Civ.P. 1.510; Elser v. Law Offices of James M. Russ. P.A., 679 So. 2D 309 (Fla. 5th DCA 1996). (An affidavit must clearly show the affiant is competent to testify to the matters stated in the affidavit.) 5. Fla. R. Civ. Pro 1.510(c) sets out the formal requirements that affidavits must

meet. The rule reads, in part:

answers to interrogatories. Nour v. a copy of which are attached to her Affidavit. Affiant states “Plaintiff is owed the following sums of money” the amounts are taken from an “Individual Message” attached to the Affidavit which is from Echeverria Processer on behalf of Wells Fargo Home Mortgage . it is legally insufficient. Affiant states that she acquired “personal knowledge of the matters stated herein by examining those business records.[s]upporting and opposing affidavits shall be made on personal knowledge. Affiant alleges that she is familiar with the business records maintained by the servicer. shall set forth such facts as would be admissible in evidence. 1st DCA 1986). or from information provided by.1205 (Fla. 6. So 2d 1204. for example in Paragraph 3 of the Affidavit. and relies upon someone else's personal knowledge for her statements. persons with knowledge of the activity and transactions reflected in such records”. All State Supply Co. Significantly Affiant does not claim that she is the person that made the entries into the computer. A corporate officer’s affidavit which merely states conclusions or opinion is not sufficient. Jessibel Mojica’s (“Affiant”) personal knowledge is indisputably based on multiple levels of hearsay. She does not state what her job or duties are. and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The affidavit clearly belies the fact that someone or something else opens the mail and enters data into the computer system. That these records are “made at or near the time by. (2) set forth such facts as would be admissible in evidence. or by further affidavits. Plaintiff’s Affidavit is invalid on its face as will be further set out below. Thus. when a supporting affidavit does not comply with the requirements that it: (1) be made on personal knowledge. The court may permit affidavits to be supplemented or opposed by depositions. even if it is based on personal knowledge. and (3) show affirmatively that the affiant is competent to testify to the matters stated therein. 7.. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

that affiant has "personal knowledge"... Nour v. Montejo Invests. but is itself a mere conclusion or opinion of the affiant").. All State Pipe Supply Co. was not based on personal knowledge. and did not set forth facts as would be admissible in evidence. 3d DCA 1995) noted that “the purpose of the personal knowledge requirement is to prevent the trial court from relying on hearsay when ruling on a motion for summary judgment and to ensure that there is an admissible evidentiary basis for the case rather than mere supposition or belief. 1st DCA 1988)). the message is from an employee of Wells Fargo Home Mortgage AND NOT Wells Fargo Bank NA (the successor for Wells Fargo Home Mortgage) for which the Affiant is employed as Vice President of Loan Documentation. 2D 158 (Fla. Green Cos.).V. the affidavit lacks the “personal knowledge” required.” Therefore. affidavit was legally insufficient as it failed to show affirmatively that affiant was competent to testify to matters set forth therein.to the Foreclosure Processor at Florida Default Law Group. In point of fact all the attachments demonstrate that they were created by Wells Fargo Home Mortgage and therefore indisputably the Affiant cannot have any personal knowledge regarding same. Guaranty Association 661 So. and that to the best of his knowledge and belief the facts were true and accurate. An affiant fails to satisfy this competency requirement where affiant merely states. in Alvarez v. 966 (Fla. v. Inc. that he was familiar with the facts stated in the complaint. Indeed she admits the matters are “recorded by persons with personal knowledge. without more. 9. 528 So 2d 965. 3rd DCA 1985) (Where affiant merely stated his title. Barnett Bank of Columbia County. of Fla. 8.” Id at 1232 (quoting Pawlik v. 487 So. 1st DCA 1986)(Addition of phrase that the affiant is "personally knowledgeable" with respect to the allegations of the complaint adds nothing. An affiant should establish the factual basis for affiant's competence . 471 So. The Third District. N. since it is not a statement of fact. in spite of its assertion to the contrary and is nothing more than hearsay upon hearsay. 2D 1204 (Fla. 2d 1230 (Fla. Notably. Florida Ins.

Boney. v. of Fin.). 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. 1st DCA 2004). Accordingly.(i. Bad. St. 498 So. 10. First Mortgage Investors. 2nd DCA 2000). 2nd DCA 1986) (Affidavit legally insufficient where affiant clearly incapable of having personal knowledge of facts at issue in case). 494 So. 868 So. Servs. Carter v. Florida Dept. 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). v. 705 So. Nat. Associated Indus.. Ins.. 433 So.2d 600 (Fla.2d 1319 (Fla. 2D 289 (Fla.. Hoyt v. Of County Comm'rs. Id. 2D 450 (Fla. 779 So.. 327 So. 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. Thompson v. Citizens Nat'l Bank of Leesburg. bases of affiant's personal knowledge of the relevant matters at issue in the case. age. an affiant should state in detail the facts showing affiant has personal knowledge. Inc. The burden is on the movant to establish the absence of any genuine issue of fact and the entitlement to judgment as a matter of law. Avatar Props. Cessna Fin. v.2d 119 (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). . Bank of Miami. Williams v. 2D 32 (Fla.e. rather than mere belief or conjecture. or affiant's position on.). 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. 2D 830 (Fla. Co. Inc. 11. Henderson. Corp. etc. Lucie County.. 3rd DCA 1976). Blvd.

2nd DCA 1995) (court reversed summary judgment where witness based statements on reports. 256 So.312 is legally insufficient as affidavit failed to set forth any evidentiary facts that would be admissible in evidence). See. Affidavits may not be based on allegations of ultimate facts. that the allegations in the complaint are true and correct. 156 So... the affiant must attach the document to the affidavit. Inc. Co. should be disregarded by the trial court. 2D 757 (Fla. Heintzelman's Ford. since attorney was not custodian of public records. Chase Manhattan Bank. Finally. Inc. Inc. 487 So. v. that would be inadmissible at trial. of Central Florida. 2D 174 (Fla.) 13. Nour v.671. Hurricane Boats. 140 So. JUA. 2D DCA 1962). Pasco County. 1st DCA 1986). and judgments contained in public records. Inc. Inc. such as hearsay or opinion testimony. USA. N. and that defendant owes plaintiff $3. Warden v.. and consequently. 2d 978. 2D 432 (Fla. 2D 546 (Fla. Florida Workers' Comp. Jones Constr. 3rd DCA 1974).2nd DCA 1992) (attorney not competent to testify in affidavit as to property transactions reflected in settlements. 2D DCA 1963). Nor can an Affidavit be based on conclusions of law. when a document supplies the basis for an affiant's personal knowledge. Fabricators. Deerfield Beach Bank v. Allegations in an affidavit that set forth incompetent and inadmissible matters. Zoda v. was unable to authenticate . deeds. Moreover an affidavit that amounts to nothing more than a statement by affiant that the allegations in the complaint are true similarly is insufficient.. 979-80 (Fla. CSX Transp. See also.12. Affidavits should set forth facts which would be admissible at trial. but failed to attach reports to affidavit). 872 So.A. 2D 1204 (Fla. All State Pipe Supply Co. 596 So. Nager. 246 So. 2D 120 (Fla. 4th DCA 2004). 2nd DCA 2001) (affidavit that states only that affiant has personal knowledge of the facts. v. Inc. 2D 264 (Fla.. Dean v. Hedden. Ham v. 14.. v. 660 So. 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. Gold Coast Theaters. Inc. 2D 1225 (Fla. Certified Indus. 793 So.

192 So. 15. Jessibel Mojica cannot state that she has personal knowledge of the matters contained in Wells Fargo Home Mortgage records because admittedly Wells Fargo Bank NA is the successor by merger and the note is owed by another entity.e. in order to meet the “usual business practices” element for a business records foundation. In this case. sets forth legal conclusions and opinion testimony. 3rd DCA 1966) (court rejected Plaintiff's affidavit that defendant acknowledged debt in writing where Plaintiff failed to attach letters from defendant). records she readily admits were created by others. Clearly. 268 So. Crosby v. Wolf. sets forth facts and/or conclusion where she clearly was incapable of having personal knowledge of facts at issue in case. Notably. sets forth no facts showing she has personal knowledge. the witness must be shown to be “either in charge of the activity . she has knowledge of the business records “made … of matters recorded by persons with personal knowledge” and “information transmitted by persons with personal knowledge” (how does Affiant know what knowledge the person imputing the information has or what personal knowledge the individual transmitting information had?). Topping v.documents referred to in his affidavit). Rowland v. i. 16. 2D 787 (Fla. Co. Based on the abundance of case law sited above. Moreover. 2nd DCA 1972) (attorney's affidavit stating that he was familiar with client's records and the records reflect certain information constituted inadmissible hearsay). 534 So. Paxon Elec. none of the documents attached to the Complaint support the allegations contained therein. 1st DCA 1988). Hotel George V. all the information on the affidavit is taken from Wells Fargo Home Mortgage business records. 1st DCA 1991). 2D 47. and attaches business records created by others which are unauthenticated and do not in and of themselves support her statements in her Affidavit. 49 (Fla. 2D 906 (Fla. appeal after remand. the Affidavit of JESSIBEL MOJICA must be stricken as it is not based on personal knowledge. 576 So.. sets forth hearsay or opinion testimony that would be inadmissible at trial. 2D 388 (Fla..

294 So.. 3d DCA 1974). (Fla. Inc. Allstate Ins. The “custodian or other qualified witness” testifying as to the records kept by a particular business must be “acting within the scope of that business. In this case. Mastan Co.2d 528 (Fla. respectfully request an order from this court striking the Affidavit of Amounts Due and Owing executed by Lori Siler and for such other relief as the court deems fit. 2d DCA 1968).2d 103 (Fla. the Defendant. the affidavit demonstrates that Jessibel Mojica is not competent to testify to the matters stated in her affidavit. ANDREW SCOTT REALTY CORP. 743. 3d DCA 1972). Thompson v. 5th DCA 1983). American Custom Homes.” Alexander v.2d 592.2d 63 (Fla. Indeed. Grimes. (1981). 546 So. 1st DCA 1989). There must also be “some proof that practice was followed in the particular circumstance. Fla.” Alexander at 593. The Affiant cannot state that she has personal knowledge of the matters contained in Wells Fargo Home Loans’s business records. Liberty Mutual Insurance Company. 261 So. 17. nor that the bank records were complete or correct. citing Bernstein v. 214 So. 33 (Fla.. 433 So. Citizens Nat’l Bank of Leesburg. See § 90.constituting the usual business practice or is well enough acquainted with the activity to give the testimony. she says she is “familiar with business records maintained by Wells Fargo Bank NA for the purpose of servicing mortgage loans. nor where they kept under her supervision and control.. 5th DCA. WHEREFORE.2d 741.. DHRS. Co. v.Stat. Holt v.2d 32. Inc. 593 (Fla. the Affiant does not state that the records in question are kept under her “supervision and control” or that she was “in charge of the activity… or well enough acquainted with the activity” of Wells Fargo Home Loans. . 1980).803(6). 18. 388 So.” 19.” Johnson v. Indisputably.

Esq. FL 33309 Tel: (954) 677-8888 Fax: (954) 677-8881 By: ____________________________ Joann M. LYNCH.CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was forwarded via U. Mirchandani. Fl 33324 and John R. Esq. Mail to Ron G. Esq. . Rice. Eubanks. BRETON.954-467-8214 *Note: Several attempt was made to coordinate depositions opposing counsel. West Palm Beach. ET AL. Florida Bar No. Commercial Blvd Suite 18 Fort Lauderdale. Ste: 3000.: 192465 Adam I. PL Attorney for Defendant(s) 3601 W.. Skolnik. Plantation. 1209 No. 2011. Olive Avenue. Florida Bar No. EUBANKS.S.: 728081 Kunal A. CIVIL JUSTICE ADVOCATES. 86161 CC: OFFICIAL REPORTING SERVICES FAX. 8201 Peters Road. KAHANE & ASSOCIATIONS PA. Jr.. Esq.. Jr. Florida Bar No.. Florida 33401 on this October 6. Hennessey.

documents or tangible things that supports Plaintiff’s claim that Defendant requested or otherwise solicited a credit card from Plaintiff. records. Esq. records. Asbury. All other books. Commercial Blvd. THESE ITEMS WILL BE INSPECTED AND MAY BE COPIED AT THE TIME OF THE DEPOSITION. FL 33309 By:______________________________ Carol C.EXHIBIT A 1. evidence or instructions that Clair Dorias and Christopher Shook reviewed or relied upon in order to prepare the affidavit of debt and affidavit of indebtedness.. All books. records. papers. Florida Bar: 393665 . Lauderdale. All documents. Suite 18 Ft. respectively executed in this case in support of Plaintiff’s claims. Asbury. CERTIFICATE OF SERVICE Carol C. papers. DEPONENTS WILL NOT BE REQUIRED TO SURRENDER THE ORIGINAL ITEMS. 3. 2. books. DEPONENTS HAVE THE RIGHT TO OBJECT TO THE PRODUCTION BY GIVING WRITTEN NOTICE TO THE ATTORNEY WHOSE NAME APPEARS ON THIS NOTICE. documents and other tangible things kept by Plaintiff concerning the transactions alleged in the complaint against Defendant. DEPONENTS MAY CONDITION THE PREPARATION OF THE COPIES UPON THE PAYMENT IN ADVANCE OF A REASONABLE COST OF PREPARATION. Esquire Attorney for Defendant 3601 W.

2009 the FDIC publicly released for the first time the formerly sealed bid forms submitted on May 19.i BankUnited FSB went into receivership on on June 25. 2009 by all three bidders in the auction for BankUnited Financial Corp a/k/a BankUnited FSB. .

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