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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
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.
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.
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. Defendant pointed out to the Court that Opposite counsel had lied that Plaintiff presented the Original Note to Defendant’s Expert Witness.3. R. v. on record. Pro. i. 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. Specifically. White Palm Beach. An order merely granting summary judgment is not a Final Judgment. Also at the January 20. Defendant’s Affidavit that was attached to Opposition to Motion for Summary Judgment). . 519 (Fla. Original Note. 2d 518. STANDARD OF REVIEW 4. by the Defendant.g. 510 So. (see Exhibit B. 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. See Bettez v. Civ. 525 So. the Defendant objected. rather. Inc.e. to the introduction of introduction of the purported Copy of Original Note. (see Exhibit A. 3e DCA 1987). or even seen. City of Miami. It is noted on the January 20. 1. 12242-43 (So. 5. Rather than constituting a motion for rehearing under Fla. 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. Furthermore.530. Affidavit of Expert Witness). 2012 hearing. See e. 4th DCA 1988). 2d 1242. it is a nonfinal order. and all other evidence offered by the Plaintiff in support of its Motion. In addition.
Lucie County. an affiant should state in detail the facts showing that the affiant has personal knowledge. 2d 450 (Fla. Furthermore. 2000). 1.MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION I. Under Florida Law. 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. 2d 1204 (Fla. Corp. P. Carter v.510(e) (reading. 5th DCA 2005). Enterprise Leasing Co. 705 So.. BD. Plaintiff attached an affidavit in support of its Motion for Summary Judgment. depositions. of County Comm’rs. Legal Standards 6. 2d DCA 2005). Bernstein. With respect to affidavits. West edge II v. Most importantly.l Pro. See The Florida Bar v. . In re forefeiture of 1998 Ford Pickup Identification No. based on an examination of evidence.. “the pleadings.510( c ). 15 So. 9. 2d 119 ) Fla. pursuant to Rule 1. 510 So. in pertinent part. and only if. that “affidavits shall be made on personal knowledge”). and admissions on file together with the affidavits. 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). Inc. 1. 2d 1319 (Fla. Green 926 So. 2d 953 (Fla. 498 So. 2d DCA 2009). 2d 126. the admissibility of same rests upon the affiant having personal knowledge as to the matters stated therein. Civ. civ. 7. Petruska v. 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. Smartparks-Silver Springs. 910 So. Kunderas. answers to interrogatories. if any. no genuine issue of material fact exist and movant is entitled to judgment as a matter of law. See Fla. Demartino. summary judgment is proper if. R. 914 So. 2d 502 (fla. 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). and only if. 3d 711 (Fla. “Fla.510 of the Florida Rules of Civil Procedure. a Court may grant summary judgment if. 2d DCA 2000). In summary judgment proceedings. Cessna Fin. v. 779 So. 1FTZX1767WNA34547. A. 8. See Bradford v. R. St. 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. 130 (Fla. 2d DCA 1987). SeeHoyt v.
Inc.” See also CSX Transp.10. the alleged copy of the original note filed by the Plaintiff contains a forged signature of the Defendant.510(e) provides. 16. v. Argument 11. Furthermore. and other pleadings. 15. 1. R. B. Here. 2012 Objection to Plaintiff’s Motion for Summary Judgment for a fuller explanation of the same. the Defendant properly argued that Plaintiff’s counsel committed perjury by stating that he had presented the original note to Defendant’s expert witness. Defendant’s affidavit. . 13. 12. 2d 757 (Fla. a multitude of conflicts in material facts exist that should have precluded a ruling of summary judgment in favor of the plaintiff. 660 So. Pro. Civ. Defendant’s answer. Expert Witness’s Affidavit. 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. While the Defendant’s December 27. the Plaintiff has not met this burden. Specifically. 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. (2) the endorsement’s authenticity or veracity. Furthermore. 14. 2011 Objection to Plaintiff’s Motion for Summary Judgment provides in-depth analysis of the reasoning behind the Defendant’s argument. that “[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. There is also a material difference between the original note and the copy of the purported original note attached to the Plaintiff’s pleadings. 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. In addition. Fla. Pasco County. 2d DCA 1995) (reversing summary judgment granted below.. the Defendant respectfully suggests that this court would refer to his December 27. 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. In further support of this argument. This creates genuine issues of material fact regarding (1) When the purported endorsement of the note was effectuated. in part. because the affiant based his statements on reports but failed to attached same to the affidavit).
PRO SE GLORIA F.S. 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. 350 East Las Olas Blvd. Trinz. GUARDADO. Mail. PRO SE 6351 West 16th Avenue Hialeah. Specifically. based upon the foregoing. the introduction of the purported copy of the original note.. Florida. this January 23. 2012. Finally. the Defendant respectfully requests this Court grants his Motion for Reconsideration. and all other evidence offered by the Plaintiff in support of its motion. Miami. WHEREFORE. Fort Lauderdale. 33012 Hialeah. PRO SE 6351 West 16th Avenue 6351 West 16th Avenue Hialeah. 33012 Tel: (786)468-1792 ______________________________ GLORIA F. Florida 33131-1714.17. Florida. Las Olas Centre II. to the introduction of the Plaintiff’s affidavit in support of its Motion for Summary Judgment. and any other relief the Court deems just and proper. PRO SE 6351 West 16th Avenue Hialeah. SEQUEIRA. SEQUEIRA. _____________________________ ______________________________ HORACIO R. Florida. Heller. Florida. Counsel for American Home Mortgage Servicing Inc. Suite 1600. GUARDADO. vacate its Motion for Summary Judgment in favor of the Plaintiff. Florida. _____________________________ HORACIO R. 2012 hearing on its opposition and again on the record. the Defendant’s counsel formally objected at the January 20. 33012 . email and Facsimile to Jeffrey A. 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. and to William P. or even seen. AKERMAN SENTERFITT.. One Southeast Third Avenue 25th Floor. enter an Order denying Summary Judgment. by the Defendant. 33301. Akerman Senterfitt.
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