1IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR MIAMI-DADE COUNTY AMERICAN

HOME MORTGAGE SERVICING, INC. Plaintiff, CASE NO.: 09-74869CA05 Division# UNC -vs. HORACIO R. SEQUEIRA AND GLORIA F. GUARDADO, Husband and Wife; Unknown Parties in Possession Defendants ______________________________________________________________/

DEFENDANTS MOTION FOR RECONSIDERATION AND MOTION TO VACATE ORDER OF SUMMARY JUDGMENT
COMES NOW, the Defendants, Horacio R. Sequeira and Gloria Romero Guardado (herein “Defendants”), respectfully file this MOTION FOR RECONSIDERATION AND MOTION TO VACATE SUMMARY JUDGMENT, pursuant to precedent case law, and in support thereof states as follows: FACTS
1.

On January 20, 2012, a hearing was held in regards to the Plaintiff’s Motion for Summary Judgment. In opposition to this hearing, the Defendants timely filed an Objection to the Plaintiff’s Motion for Summary Judgment.

2.

The Defendant’s initial Objection to Plaintiff’s Motion for Summary Judgment asserted four (4) very specific and detailed objections to Summary Judgment. Defendant attached an affidavit to its opposition. To summarized, these objections were that: (1) the Defendant noted that the evidence presented by Plaintiff in support of its motion was based on hearsay and on fraudulent documents that contained defendant’s forged signature.; (2) Plaintiff’s statement concerning the purported original note stated in the Plaintiff’s complaint were in conflict with its Motion for Summary Judgment thereby creating issues of material fact; and (3) the Plaintiff had failed to plead its capacity to maintain the litigation.

e. Inc. 510 So. by the Defendant. Affidavit of Expert Witness). 5. (see Exhibit B. Pro. (see Exhibit A. 525 So.g.530. Defendant pointed out to the Court that Opposite counsel had lied that Plaintiff presented the Original Note to Defendant’s Expert Witness. It is noted on the January 20. the Defendant objected. An order merely granting summary judgment is not a Final Judgment. City of Miami. . on record. 4th DCA 1988). or even seen.3. 2012 record that the Court asked the Defendant for the Expert Witness Affidavit and that Defendant offered to the Court to bring it if given an opportunity. Specifically. Original Note. STANDARD OF REVIEW 4. Defendant noted that the evidence was fraudulent and objected to the procedure by which the Court received and considered the evidenced which had not been considered. Fox. Civ. and all other evidence offered by the Plaintiff in support of its Motion. See Bettez v. Rather than constituting a motion for rehearing under Fla. Also at the January 20. White Palm Beach. 2012 hearing. 1. the Court had Defendant’s affidavit attached to its opposition stating that he has never seen the Original Note confirming that counsel for Plaintiff was lying and committing Fraud upon the Court. R. In addition. 3e DCA 1987). rather. to the introduction of introduction of the purported Copy of Original Note. See e. a motion directed to a nonfinal order is termed a “Motion for Reconsideration” based upon the trial court’s inherent authority to reconsider and alter or retract orders prior to the entry of final judgment. it is a nonfinal order. v. Defendant’s Affidavit that was attached to Opposition to Motion for Summary Judgment). Furthermore. 2d 518. 12242-43 (So. 519 (Fla. i. 2d 1242.

St. 2d 1319 (Fla. 2d DCA 2000). an affiant should state in detail the facts showing that the affiant has personal knowledge. Petruska v.. that “affidavits shall be made on personal knowledge”). 705 So. 2d 502 (fla.510( c ). BD. and only if. With respect to affidavits. based on an examination of evidence. Legal Standards 6. R. 2d 126. See Bradford v. 4th DCA 1998) (holding an affidavit legally insufficient where it failed to reflect facts demonstrating how the affiant would possess personal knowledge of the matters at issue in the case). 2d DCA 2005). 2d 119 ) Fla. in pertinent part. R. v. no genuine issue of material fact exist and movant is entitled to judgment as a matter of law. Civ. Bernstein. 2d DCA 1987). See The Florida Bar v. 498 So. a Court may grant summary judgment if. 1. and admissions on file together with the affidavits. See Fla. In summary judgment proceedings. 9. 2d 1204 (Fla. Under Florida Law. 130 (Fla. Cessna Fin. A. answers to interrogatories. Enterprise Leasing Co. 2d DCA 2009). Carter v. Kunderas.. “Fla. depositions. 1FTZX1767WNA34547. the Court must take all the facts that the non-movant states as true and must draw all reasonable inferences in favor of the non-moving party. Corp. 2d 953 (Fla. show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. 3d 711 (Fla. Most importantly. 910 So.510(e) (reading. 779 So. civ.MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION I. Smartparks-Silver Springs. 4th DCA 1986) (holding an affidavit legally insufficient where the affiant failed to set out a factual basis to support a claim of personal knowledge of matter at issue in the case and failed to make assertions based on personal knowledge). 914 So. the admissibility of same rests upon the affiant having personal knowledge as to the matters stated therein. 2000). Green 926 So. 8. The Court incorrectly granted Summary Judgment in favor of the Plaintiff where genuine issues of material fact exist which were timely raised and objected to by the Defendant. West edge II v. “the pleadings. Inc. .l Pro. 5th DCA 2005). 1. Furthermore. summary judgment is proper if. P. if any. 7. SeeHoyt v.510 of the Florida Rules of Civil Procedure. Plaintiff attached an affidavit in support of its Motion for Summary Judgment. 15 So. In re forefeiture of 1998 Ford Pickup Identification No. 510 So. Lucie County. and only if. Demartino. of County Comm’rs. pursuant to Rule 1. 2d 450 (Fla.

the Plaintiff has not met this burden. 1. Furthermore. There is also a material difference between the original note and the copy of the purported original note attached to the Plaintiff’s pleadings. This creates genuine issues of material fact regarding (1) When the purported endorsement of the note was effectuated. the Defendant respectfully suggests that this court would refer to his December 27. Based upon the facts asserted in both this motion and the Defendant’s Objection to Plaintiff’s Motion for Summary Judgment and its affidavit and exhibits. the Defendant properly argued that Plaintiff’s evidence in support of its Motion for Summary Judgment is based on fraudulent documents that contains Defendant’s forged signature. R. a multitude of conflicts in material facts exist that should have precluded a ruling of summary judgment in favor of the plaintiff. In further support of this argument. Inc. 14. Here. the alleged copy of the original note filed by the Plaintiff contains a forged signature of the Defendant. 660 So. the Defendant properly argued that Plaintiff’s counsel committed perjury by stating that he had presented the original note to Defendant’s expert witness. 12. Fla.. because the affiant based his statements on reports but failed to attached same to the affidavit). In addition. B. Pasco County. 2d 757 (Fla. (2) the endorsement’s authenticity or veracity. Argument 11. Furthermore. While the Defendant’s December 27. the purported evidence is objectionable on its face because the Plaintiff’s affidavit is based entirely on hearsay and because the affiant lacked personal knowledge of the facts stated herein. Civ.” See also CSX Transp. Defendant’s answer. 16. . Pro.10. To begin the Defendant objected to the affidavit submitted by the plaintiff in support of its Motion for Summary Judgment was based wholly on hearsay and therefore Summary Judgment granted on this basis would be improper (see Defendant’s Affidavit). in part. Specifically. and other pleadings. 13. that “[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. in part.510(e) provides. 2011 Objection to Plaintiff’s Motion for Summary Judgment provides in-depth analysis of the reasoning behind the Defendant’s argument. v. Expert Witness’s Affidavit. 2012 Objection to Plaintiff’s Motion for Summary Judgment for a fuller explanation of the same. Defendant’s affidavit. 2d DCA 1995) (reversing summary judgment granted below. 15.

WHEREFORE. SEQUEIRA. Las Olas Centre II. AKERMAN SENTERFITT. 33012 . Trinz. _____________________________ HORACIO R. PRO SE 6351 West 16th Avenue 6351 West 16th Avenue Hialeah. 33301. PRO SE GLORIA F. email and Facsimile to Jeffrey A. the introduction of the purported copy of the original note. Suite 1600.17. Specifically. Florida. Florida. Mail. this January 23. 2012 hearing on its opposition and again on the record. or even seen. vacate its Motion for Summary Judgment in favor of the Plaintiff. Florida. Heller. and any other relief the Court deems just and proper. enter an Order denying Summary Judgment. PRO SE 6351 West 16th Avenue Hialeah. Florida. to the introduction of the Plaintiff’s affidavit in support of its Motion for Summary Judgment. _____________________________ ______________________________ HORACIO R. and all other evidence offered by the Plaintiff in support of its motion. Finally. 33012 Tel: (786) 468-1792 CERTIFICATE OF SERVICE The undersigned declare that a true and correct copy of this document has been served by U. PRO SE 6351 West 16th Avenue Hialeah. Akerman Senterfitt. Counsel for American Home Mortgage Servicing Inc. based upon the foregoing. and to William P. SEQUEIRA. Miami. Florida. One Southeast Third Avenue 25th Floor. GUARDADO. 33012 Hialeah. Florida 33131-1714. GUARDADO. 33012 Tel: (786)468-1792 ______________________________ GLORIA F.S... 350 East Las Olas Blvd. the Defendant respectfully requests this Court grants his Motion for Reconsideration. by the Defendant. 2012. the Defendant’s counsel formally objected at the January 20. Defendant noted that none of the evidence had been formally introduced and objected to the procedure by which the Court received and considered the evidence which had not been considered. Fort Lauderdale.