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Foreclosure Defense: 9 Paragraphs to Include in your Motion to Strike Lender’s Affidavit

We’re all aware of the shoddy paperwork kept by lenders and the robo-signing scandals that recently made national news. Many times, the person signing the affidavit that is used as proof to take your home in foreclosure never even reviewed your file. If you are in foreclosure and have a foreclosure attorney on your side, make sure you have your foreclosure defense attorney review any affidavits the mortgage lender files.

Here are 9 paragraphs to include, as applicable, in your Motion to Strike Lender’s Affidavit.

Failure to Authenticate Documents

1. Plaintiff failed to attach documents referred to in the Affidavit and thereby violated Section 90.901, Florida Statutes, which states, in pertinent part, that “[a]uthentication or identification of evidence is required as a condition precedent to its admissibility.”

2. The failure to authenticate documents referred to in affidavits renders Affiant incompetent to testify as to the matters referred to in the affidavit. See Rule 1.510(e), Florida Rules of Civil Procedure (“affidavits…shall show affirmatively that the affiant is competent to testify to the matters stated therein”); Zoda v. Hedden, 596 So. 2d 1225, 1226 (Fla. 2d DCA 1992) (failure to attach certified copies of public records rendered affiant, who was not a custodian of said records, incompetent to testify to the matters stated in his affidavit as affiant was unable to authenticate the documents referred to therein).

3. Here, Affiant affirmatively states in her Affidavit that she is “familiar” with Plaintiff’s “loan payment records” and that the Affidavit is “based” thereon. Nevertheless, Affiant fails to attach any of the books, records or documents referred to in the Affidavit. By Affiant’s own admission, the loan payment records are updated “by persons whose regular duties include recording this information.” Affiant averred to records which she did not submit nor to which she could testify as to their authenticity just as the affiant in the Zoda case.

4. Rule 1.510(e), Florida Rules of Civil Procedure, provides, in part, that “[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” Failure to attach such papers is grounds for reversal of summary judgment decisions. See CSX Transp., Inc. v. Pasco County, 660 So. 2d 757 (Fla. 2d DCA 1995) (reversing summary judgment granted below where the affiant based statements on reports but failed to attach same to the affidavit).

The Affidavit is Hearsay

5. The Affidavit is hearsay and should be stricken in its entirety. Both the Zoda case and the CSX case hold that affidavits based on hearsay are not sufficient to support summary judgment. The affiant must have personal knowledge as to the matters stated therein. See Rule 1.510(e), Florida Rules of Civil Procedure (“affidavits shall be made on personal knowledge”); Enterprise Leasing Co. v. Demartino, 15 So. 3d 711 (Fla. 2d DCA 2009); West Edge II v. Kunderas, 910 So. 2d 953 (Fla. 2d DCA 2005).

6. The Third District in Alvarez v. Florida Ins. Guaranty Association, 661 So. 2d 1230 (Fla. 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.” Id. at 1232 (quoting Pawlik v. Barnett Bank of Columbia County, 528 So. 2d 965, 966 (Fla. 1st DCA 1988)).

7. The non-movant in summary judgment proceedings enjoys a higher burden of proof required against them than does a criminal defendant. While a criminal defendant enjoys the standard of “beyond a reasonable doubt,” the non-movant in summary judgment proceedings effectively enjoys beyond the “slightest” doubt. See Mivan Florida v. Metric Constuctors, Inc., 857 So.2d 901 (Fla. 5th DCA 2003).

8. It can be appreciated then that hearsay in summary judgment affidavits of proof is absolutely inappropriate. This is because, as recognized by Bifulco v. State Farm, 693 So.2d 707 (Fla. 4th DCA 1997), the granting of summary judgment cuts off a party’s right to trial, which the Bifulco court observes is a constitutional right.

9. Neither does the business record exception apply as an exception to Affiant’s statements being hearsay. Authentication of a business record is different than admissibility of the record as a statement under the business exception rule. As noted above, none of the records to which Affiant avers are attached to the Affidavit and neither is Affiant the records custodian thereof even if they were attached. Affiant does not attempt to authenticate nor establish she is the custodian of the attached Exhibit “Lender Loan Judgment Figures.”

WHEREFORE, Defendants respectfully move this Court to enter an order granting their Motion to Strike together with any other relief deemed just and proper.

About Nick

Nickolas C. Ekonomides practices law in Tampa, and Clearwater, Florida. In 1994 he was admitted to The Florida Bar and the U.S. District Court, Middle District of Florida. He was admitted to the United States Supreme Court in 2004. He is a Business Lawyer and Real Estate Attorney. His practice also includes Personal Injury Law.

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Nickolas C. Ekonomides is licensed in Florida with main office Clearwater.