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By Richard Shuster Esq.

Three Rules For Defeating the Bank's Motion For Summary Judgment in Foreclosure Cases

One of the attorneys in our Miami office watched a sole practitioner foreclosure defense attorney ( at attorney who is NOT associated with this firm) go down in flames on a summary judgment hearing before a Miami judge. As a civil litigation firm that successfully handled well over one thousand summary judgment hearings in general civil and insurance cases, I wanted to explain for other foreclosure lawyers and for homeowners some important pointers for successfully defending a lender’s motion for summary judgment in a foreclosure case.

Rule One: Always Bring a Court Reporter: In most (but by no means all) foreclosure cases if the bank wins their summary judgment motion then the bank wins their case and the Court will set a sale date in 30 to 90 cases. A foreclosure defense lawyer should consider the bank’s motion for summary judgment to be equivalent of a trial. If the motion is lost, the homeowner is unlikely to get a second chance. Since the summary judgment is a critical part of the case it is ESSENTIAL that the homeowner’s attorney bring a court reporter to the hearing. By having a court reporter there is a record of the proceedings. If the judge males an erroneous ruling either by disregarding applicable case law (controlling legal precedent) or disregarding evidence or lack of evidence then the homeowner will need a record of what happened in order to appeal the judge’s ruling.

Some judges do not like presiding over foreclosure cases. Some judges fell that if the homeowner did not pay the mortgage then the bank should win. One judge in Southwest Florida even commented to the press the rapid processing of foreclosure cases was necessary so that real estate prices would stabilize. If there is no court reporter at the hearing the judge can rule against the homeowner and know that the homeowner will be unable to appeal. If a court reporter is present the judge knows that if he or she does not follow the law the judge may be reversed on appeal by a higher appellate Court. Most judges hate being reversed on an appeal. For a judge, being reversed means a higher Court writes an ruling saying the judge made a mistake. Rulings of Florida’s appellate Courts are published in the Florida Law Weekly and Florida Law Weekly Supplement which is mailed to every Court in the state and sent by subscription to most Florida law firms.

Rule Two: Prepare: A lawyer can’t wing a summary judgment hearing. Meticulous preparation is required. The attorney should review the lender’s motion for summary judgment, analyze the case law cited in the motion, prepare a counter argument, anticipate the bank’s lawyer’s counter-attacks, and bring to Court three copies of each case they cite in opposition to the lender’s motion.

Rule Three: Do not waive objections: In the hearing where a Miami sole practitioner lost the case, the lawyer asked the Court to continue the summary judgment hearing because the bank had not provided discovery responses. Florida appellate courts have consistently held that summary judgment motions should not be heard until discovery is complete. The Court refused the continue the summary judgment. The judge rejected the last minute oral request for a continuance and explained the homeowners lawyer that if the bank did not provide discovery responses then the homeowner’s lawyer should have filed a motion to compel. The judge also felt that a motion for continuance should have been in writing and served long before the summary judgment hearing. If the homeowners lawyer was counting on a continuance perhaps the did not prepare as hard for the hearing. The solo should have reviewed their file when they received the motion for summary judgment and prepared a motion to compel if discovery was still outstanding.

I often wonder whether the foreclosure lawyers who change a “one time fixed fee” are able to spend adequate time to prepare and argue motions to compel. When clients go to the cheapest foreclosure lawyer, does that lawyer plan to bring a court reporter to the summary judgment hearing or even attend the hearing themselves. When homeowners interview prospective lawyers for foreclosure defense the homeowner should inquire about how the firm defends summary judgments and whether the price they are paying will include having a court reporter at the hearing.

The foreclosure lawyers in the Miami, Plantation, and Melbourne offices of Shuster & Saben, begin preparing for summary judgment the moment we open the file. Our discovery is planned and drafted for the purpose of defeating the lender’s motion for summary judgment and winning cases for our clients. When lender’s do not provide the discovery we ask for we follow through with motion to compel. Most homeowners cannot successfully defeat summary judgment without an attorney. When hiring counsel the homeowner should act as soon as possible so that their lawyer has time to conduct discovery prior to the summary judgment hearing.
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     To defeat a motion for summary judgement, the defendant must prepare
and file and "affidavit in opposition to motion for summary judgement" which
must be notarized and sworn to under oath stating with precision each and
every point the defendant disagrees with in the plaintiff's motion. It should
also contain exhibits proving the defendants contention that the plaintiff
is not entitled to summary judgement because there are matters of fact
and law still at issue.
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William A. Roper, Jr.
I want to concur with the suggestions of both Mr. SHUSTER and Mike H., though I would slightly vary the focus of what Mike is suggesting by pointing out that what is essential is to get defensive summary judgment evidence into the record in admissible form.

Mr. SHUSTER approaches this same point in his discussion about the necessity of either getting the discovery in or showing that discovery is incomplete, to include an admissible showing that the defense is diligent in seeking to complete discovery, to include, where necessary, a motion to compel.

In a summary judgment setting, a party can typically rely upon only affidavits and discovery responses to defeat the motion.

Mike H. is correct to point out and suggest the advisability of getting affidavits filed.  But very often a defendant is going to be lacking in first hand knowledge of some of the key facts of the case to give a useful affidavit which can be of greatest use.

This is why discovery can be so critical!
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To help defeat Summary Judgment, defendant can strike all Plaintiff's Affidavits as hearsays:

Defendant’s Motion to Strike Affidavit of Christopher Spradling and for attorney’s fees and costs

COMES NOW, the Defendant Annabel E. Montgomery (hereinafter “Defendant”), by and through the undersigned counsel MATTHEW D. WEIDNER, and respectfully MOTIONS THIS COURT TO STRIKE AFFIDAVIT OF CHRISTOPHER SPADLING AND FOR ATTORNEY’S FEES AND COSTS, pursuant to Fla. R. Civ. Pro. 1.510, and in support thereof states as follows:

FACTS

This is an action for foreclosure of real property owned by the Defendant.

The named plaintiff in this case is HSBC BANK, USA, NATIONAL ASSOCATION, AS TRUSTEE FOR THE ACE SECURITIES CORPORATION HOME EQUITY TRUST, SERIES 2005-AG1, ASSET BACKED PASS-THROUGH CERTIFICATE (hereinafter “Plaintiff”).

On February 2, 2010 Plaintiff, by and through its counsel Florida Default Law Group, P.L. (hereinafter “Florida Default Law Group”), gave Notice of Filing of Affidavit as to Amounts Due and Owing and the accompanying Affidavit (hereinafter “Affidavit”).

The Affiant of the above-mention Affidavit was identified as Christopher Spradling (hereinafter “Spradling”). Spradling identified himself as a “Foreclosure Manager” for LITTON LOAN SERVICING, LP (hereinafter “Litton”). Litton, in turn, was identified as “the servicer of the loan…[Litton] is responsible for the collection of this loan transaction and pursuit of any delinquency in payments.”[1]

Spradling, based upon his personal knowledge, averred in the Affidavit that: (1) the Plaintiff or its assigns was owed a total of $408,809.30; (2) the Plaintiff was entitled to enforce the Note and Mortgage; and (3) Plaintiff was entitled to a judgment as a matter of law.[2] The Affidavit does not contain any mention as to who owes the Plaintiff the sum alleged save for one sentences line which cryptically state “[s]pecifically, I have personal knowledge of the facts regarding the sums which are due and owing to Plaintiff or its assigns pursuant to the Note and Mortgage which is the subject matter of the lawsuit” and a second which states “I am familiar with the books of account…concerning the transactions alleged in the Complaint.”[3] Emphasis added.

Nowhere in the Affidavit was either Litton or Spradling identified as either the Plaintiff or the Plaintiff’s authorized agent.

Upon information and belief, Litton is simply a “middleman” of sorts who is responsible for the transfer of funds between the various assignees of the underlying Mortgage and Note and has no knowledge of the underlying transactions between the Plaintiff and Defendant.

Upon information and belief, Spradling, as employee of Litton and not the Plaintiff, has no knowledge of the underlying transactions between the Plaintiff and Defendant.

LEGAL REASONING IN SUPPORT OF MOTION

I. Plaintiff Failed to Attach Documents Referred to in the Affidavit

a. Failure to Attach Documents Violates Fla. Stat. §90.901 (1989)

Florida Statue §90.901 (1989) states, in pertinent part, that “[a]uthentication or identification of evidence is required as a condition precedent to its admissibility.” The failure to authenticate documents referred to in affidavits renders the affiant incompetent to testify as to the matters referred to in the affidavit. See Fla. R. Civ. Pro. 1.510(e) (which reads, in pertinent part, that “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) (holding, in part, that 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.)

Here, Spradling affirmatively states in the Affidavit that he is “familiar with the books of account and have examined all books, records, and documents kept by LITTON LOAN SERVICING, LP concerning the transactions alleged in the Complaint.”[4] Furthermore, Spradling averred that the “Plaintiff or its assigns, is owed…$408,809.30.”[5] Nevertheless, Spradling has failed to attach any of the books, records or documents referred to in the Affidavit. In addition, Spradling does not meet the definition of “custodian,” which is “a person or institution that has charge or custody (of…papers).” See Black’s Law Dictionary, 8th ed. 2004, custodian. By Spradling’s own admission “[t]he books, records, and documents which [Spradling] has examined are managed by employees or agents whose duty it is to keep the books accurately and completely.”[6] Emphasis added. Thus, Spradling has only examined the books, records, and documents which he refers to in the Affidavit while the true custodians of these documents are the employees or agents whose duty it is to keep the books accurately and completely. In essence, Spradling averred to records which he did not submit nor could he testify for the authenticity of just as the affiant in Zoda did.

Spradling’s failure to attach the documents referred to in the Affidavit without being custodian of same is a violation of the authentication rule promulgated in Fla. Stat. §90.901 (1989), which renders him incompetent to testify to the matters stated therein as the Second District in Zoda held. Therefore, the Affidavit should be struck in whole.

b. Failure to Attach Documents Violates Fla. R. Civ. Pro. 1.510(e)

Fla. R. Civ. Pro. 1.510(e) 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.)

As previously demonstrated, Spradling referred to books, records, and documents kept by Litton which allegedly concerned the transaction referred to in the Complaint against the Defendant. Nevertheless, as previously demonstrated, Spradling has not attached any of these books, records or documents. This failure to do so is a violation of Fla. R. Civ. Pro. 1.510(e) and is grounds for a reversal of a summary judgment decision in favor of the Plaintiff. Therefore, the Affidavit should be struck in whole.

II. Affidavit Was Not Based Upon Spradling’s Personal Knowledge

As a threshold matter, the admissibility of an affidavit rests upon the affiant having personal knowledge as to the matters stated therein. See Fla. R. Civ. Pro. 1.510(e) (reading, in pertinent part, that “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); In re Forefeiture of 1998 Ford Pickup, Identification No. 1FTZX1767WNA34547, 779 So. 2d 450 (Fla. 2d DCA 2000). Additionally, a corporate officer’s affidavit which merely states conclusions or opinion is not sufficient, even if it is based on personal knowledge. Nour v. All State Supply Co., So. 2d 1204, 1205 (Fla. 1st DCA 1986).

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)). This opposition to hearsay evidence has deep roots in Florida common law. In Capello v. Flea Market U.S.A., Inc., 625 So. 2d 474 (Fla. 3d DCA 1993), the Third District affirmed an order of summary judgment in favor of Flea Market U.S.A as Capello’s affidavit in opposition was not based upon personal knowledge and therefore contained inadmissible hearsay evidence. See also Doss v. Steger & Steger, P.A., 613 So. 2d 136 (Fla. 4th DCA 1993); Mullan v. Bishop of Diocese of Orlando, 540 So. 2d 174 (Fla. 5th DCA 1989); Crosby v. Paxson Electric Company, 534 So. 2d 787 (Fla. 1st DCA 1988); Page v. Stanley, 226 So. 2d 129 (Fla. 4th DCA 1969). Thus, there is ample precedent for striking affidavits in full which are not based upon the affiant’s personal knowledge.

Here, the entire Affidavit is hearsay evidence as Spradling has absolutely no personal knowledge of the facts stated therein. As an employee of Litton, which purports to be the servicer of the loan, he has no knowledge of the underlying transaction between the Plaintiff and the Defendant. Neither Spradling nor Litton: (1) were engaged by the Plaintiff for the purpose of executing the underlying mortgage transaction with the Defendant; or (2) had any contact with the Defendant with respect to the underlying transaction between the Plaintiff and Defendant. In addition, the Affidavit fails to set forth with any degree of specificity what duties Litton performs for the Plaintiff, save for one line which states that Litton “is responsible for the collection of this loan transaction and pursuit of any delinquency in payments.”[7] At best, Litton acted as a middleman of sorts, whose primary function was to transfer of funds between the various assignees of the underlying Mortgage and Note. Litton is not the named Plaintiff in this case, nor does the Affidavit aver that either Spradling or Litton is the agent of the Plaintiff.

Because Spradling has no personal knowledge of the underlying transaction between the Plaintiff and Defendant, any statement he gives which references this underlying transaction (such as the fact that the Plaintiff is allegedly owed sums of monies in excess of $400,000) is, by its very nature, hearsay. The Florida Rules of Evidence define hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fla. Stat. §90.801(1)(c) (2007). Here Spradling is averring to a statement (that the Plaintiff is allegedly owed sums of money) which was made by someone other than himself (namely, the Plaintiff) and is offering this as proof of the matter asserted (that Plaintiff is entitled to enforce the Note and Mortgage and that Plaintiff is entitled to a judgment as a matter of law.) At best, the only statements which Spradling can aver to are those which regard the transfer of funds between the various assignees of the Mortgage and Note.

The Plaintiff may argue that while Spradling’s statements may be hearsay, they should nevertheless be admitted under the “Records of Regularly Conducted Business Activity” exception. Fla. Stat. §90.803(6) (2007). This rule provides that notwithstanding the provision of §90.802 (which renders hearsay statements inadmissible), hearsay statements are not inadmissible, even though the declarant is available as a witness, if the statement is

[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. Emphasis added.

There are, however, several problems with this argument. To begin, and as previously demonstrated, no memorandums, reports, records, or data compilation have been offered by the Plaintiff. Furthermore, the books, records, and documents referred to by Spradling in the Affidavit (which, of course, were not attached) were kept by Litton, who cannot be a person with knowledge as Litton does not have any personal knowledge of underlying transaction between the Plaintiff and the Defendant. Finally, Litton, as the source of this information, shows a lack of trustworthiness because Spradling failed to attach the books, records, and documents to the Affidavit and because neither Litton nor Spradling have knowledge of the underlying transaction between the Plaintiff and the Defendant.

Because Spradling’s statements in the Affidavit are not based upon personal knowledge, they are inadmissible hearsay evidence. As no hearsay exception applies to these statements, the Affidavit should be struck in whole.

III. Affidavit Included Impermissible Conclusions of Law Not Supported by Facts

An affidavit in support of a motion for summary judgment may not be based upon factual conclusions or opinions of law. Jones Constr. Co. of Cent. Fla., Inc. v. Fla. Workers’ Comp. JUA, Inc., 793 So. 2d 978, 979 (Fla. 2d DCA 2001). Furthermore, an affidavit which states a legal conclusion should not be relied upon unless the affidavit also recites the facts which justify the conclusion. Acquadro v. Bergeron, 851 So. 2d 665, 672 (Fla. 2003); Rever v. Lapidus, 151 So. 2d 61, 62 (Fla. 3d DCA 1963).

Here, the Affidavit contained conclusions of law which were not supported by facts stated therein. Specifically, Spradling averred that the Plaintiff was entitled to enforce the Note and Mortgage and that the Plaintiff was entitled to a judgment as a matter of law, two legal conclusions, but did not support this conclusion with statements which referenced exactly who the Plaintiff was entitled to enforce the Note and Mortgage against. In fact there is no mention of any of the parties in question save for one cryptic line in where Spradling states that “[s]pecifically, I have personal knowledge of the facts regarding the sums which are due and owing to Plaintiff or its assigns pursuant to the Note and Mortgage which is the subject matter of the lawsuit” and another which states “I am familiar with the books of account…concerning the transactions alleged in the Complaint.”[8] Nowhere in the Affidavit does Spradling state that the Plaintiff is entitled to enforce the Note and Mortgage against the Defendant nor does Spradling state that the Plaintiff is entitled to a judgment as a matter of law because the Defendant owes the Plaintiff money. At best the Affidavit accuses someone of owing the Plaintiff $408,809.30 and that the Plaintiff should be able to enforce some Note and Mortgage against that particular someone. By not clearly identifying the parties in question, Spradling has not adequately supported his two legal conclusions.

Because the Affidavit contained impermissible conclusions of law which were not supported by facts stated therein, the Affidavit should be struck in whole.

IV. Sanction of Attorney’s Fees is Appropriate

Fla. R. Civ. Pro. 1.510(g) reads, in full, that

[i]f it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorneys’ fees, and any offending party or attorney may be adjudged guilty of contempt. Emphasis added.

The undersigned counsel has expended considerable time and resources preparing to defend against an affidavit which has, on its face, no basis in law. Both Florida Default Law Group and the Plaintiff both knew that Spradling’s affidavit lacked authenticity and reliability yet still chose to file it with the Court. In addition, this is not Florida Default Law Group’s first time filing affidavits in bad faith. Recently, the Bankruptcy Court for the Southern District of Florida sanctioned both Florida Default Law Group and its client, WELLS FARGO, $95,130.45 for false representations made in affidavits in that court as well as other bankruptcy courts in Florida. See In re: Fazul Haque, Case No. 08-14257-BKR-JKO (Order Granting Wells Fargo, N.A.’s Motion for Relief from Stay and Imposing Sanctions for Negligent Practice and False Representations, Oct. 28, 2008). This is indicia of a modus operandi on Florida Default Law Group’s part to present misrepresentations and false affidavits to the Court which make an award of attorney’s fees and costs an appropriate sanction.

WHEREFORE, Defendant asks this Court to GRANT its MOTION TO STRIKE AFFIDAVIT OF CHRISTOPHER SPRADLING and enter an ORDER granting ATTORNEY’S FEES AND COSTS and any other relief the Court deems just and proper.

[1] See Affidavit As to Amounts Due and Owing, pg. 1.

[2] Id, pgs. 1, 2.

[3] Id.

[4] See Affidavit As to Amounts Due and Owing, pg. 1.

[5] Id, pg. 2.

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INDYMAC FEDERAL BANK, FSB, Case No.: 2009-CA-XXXX

Plaintiff,

v.

JANE DOE, et. al.,

Defendants.

____________________________________/

DEFENDANT JANE DOE’S

OBJECTION TO MOTION FOR SUMMARY JUDGMENT

Upon information and belief in the above-referenced paragraphs, granting Plaintiff’s Motion for Summary Judgment prior to resolution of Defendants Motion to Dismiss, prior to Plaintiff providing the requested discovery and prior to resolving the disclosed issues of fact would be improper and premature as there are still clear issues of fact which preclude a proper summary judgment at this time, including the material and pertinent issue of whether Plaintiff has proper standing to bring this action.

MEMORANDUM OF LAW

In the state of Florida, there is extensive established law that prevents summary judgment from being granted when there are outstanding issues of material fact. Johnson v. Boca Raton Community Hosp., Inc., 985 So.2d 141, Murphy v. Young Men’s Christian Association of Lake Wales, Inc., 974 So.2d 565. A “material fact,” for summary judgment purposes, is a fact that is essential to the resolution of the legal questions raised in the case, Continental Concrete, Inc. v. Lakes at La Paz III Ltd. Partnership, 758 So.2d 1214.

“Under the Florida state court procedure, the existence of any competent evidence creating an issue of fact, however credible or incredible, substantial or trivial, stops the inquiry and precludes summary judgment, so long as the “slightest doubt” is raised” West’s Florida Practice Series, 4 Fla. Prac., Civil Procedure R. 1.510(2008-2009 ed.). Dreggors v. Wausau Ins. Co., 995 So.2d 547, held that on a motion for summary judgment, unless and until material facts at issue presented to the trial court are so crystallized, conclusive, and compelling as to leave nothing for the court’s determination but questions of law, those facts, as well as any defenses, must be submitted to the jury for resolution. Christian v. Overstreet Paving Co., further explains that if the record reflects the existence of any genuine issue of material fact, or possibility of issue, or if the record raises even the slightest doubt that an issue may exist, summary judgment is improper, 679 So.2d 839.

In the summary judgment proceeding, the movant bears the burden at all times of clearly and unequivocally establishing right of summary judgment, and judgment may not be granted if any controverted issue of material facts exists or if proofs supporting motion fail to overcome every theory upon which, under pleadings, adversary’s position might be sustained, Haley v. Harvey Building, Inc., 168 So.2d 330.

In the motion for summary judgment hearings, if there is any doubt about the possibility of material issues of fact, the doubt should be resolved in favor of the non-moving party. “If the record reflects even the possibility of a material issue of fact, or if different inferences can be drawn reasonably from the facts, the doubt must be resolved against the moving party and summary judgment must be denied,” RNR Investments Ltd. Partnership v. Peoples First Community Bank, 812 So.2d 561.

The mere fact that Defendant did not raise factual issues through affidavit in opposition prior to hearing on motion for summary judgment should not preclude Defendant from being able to assert those issues of fact at the hearing. The “mere fact that evidence concerning intent of parties is uncontroverted does not necessarily mean that there is no genuine issue as to this material fact, and that summary judgment is thus proper, if uncontroverted evidence is lawfully susceptible of two or more conflicting inferences,” Marshall v. Gawel, 696 So.2d 937. Existence of a reasonable inference contrary to that asserted by the non-moving party should not result in the entry of summary judgment, but rather should be left to the jury to determine whether a preponderance of the evidence supports the inferences suggested by the moving party, Corbitt v. Kuruvilla, 745 So.2d 545. (even where facts are uncontroverted, summary judgment is not available if different inferences can be reasonably drawn from uncontroverted facts) Albelo v. Southern Bell, 682 So.2d 1126. A case which further establishes the standard for necessary documents in evidence is Flaherty v. Metal Products Corp., 83 So.2d 9, which explains that “where there are numerous issues on questions of fact and nothing in record before court by way of deposition, affidavit, admission, or otherwise upon which court could have determined that answers in allegation, if a sufficient defense, were in fact true, court’s order, even if construed as final summary judgment holding there was no issue of material fact, could not be sustained.”

It is axiomatic that Summary Judgment may not be granted unless the moving party is able to show that no genuine issues of material fact exist. See Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966); Kemper v. First Nat'l Bank of Dayton, Ohio, 277 So. 2d 804 (Fla. 3d DCA 1973). Where discovery is not complete, the facts are not sufficiently developed to enable the trial court to determine whether genuine issues of material facts exist. See Singer v. Star, 510 So. 2d 637, 639 (Fla. 4th DCA 1987). Thus, where discovery is still pending, the entry of Summary Judgment is premature. See Smith v. Smith, 734 So. 2d 1142, 1144 (Fla. 5th DCA 1999)("Parties to a lawsuit are entitled to discovery as provided in the Florida Rules of Civil Procedure including the taking of depositions, and it is reversible error to enter summary judgment when discovery is in progress and the deposition of a party is pending."); Henderson v. Reyes, 702 So. 2d 616, 616 (Fla. 3d DCA 1997)(reversing the entry of Summary Judgment where depositions had not been completed and a request for the production of documents was outstanding.); Collazo v. Hupert, 693 So. 2d 631, 631 (Fla. 3d DCA 1997) (holding that a trial court should not entertain a motion for summary judgment while discovery is still pending); Spradley v. Stick, 622 So. 2d 610, 613 (Fla. 1st DCA 1993); Singer v. Star, 510 So. 2d 637 (Fla. 4th DCA 1987).

In ruling on a motion for summary judgment, the court is not to resolve conflicting issues of fact, but rather to determine whether any genuine issues of material fact exist, and if so, the court must deny the motion, Trustees of Internal Imp. Trust Fund v. Lord, 189 So.2d 534, see also Jack Drury & Associates, Inc. v. City of Fort Lauderdale, 203 So.2d 361.

“Parties to a lawsuit are entitled to discovery as provided in the Florida Rules of Civil Procedure, including the taking of depositions, and it is reversible error to enter summary judgment when discovery is in progress and the deposition of a party is pending. See Sica v. Sam Calliendo Design, Inc., 623

In short, as the court states in Williams, summary judgments should be sparingly granted and only in those cases where there remains no genuine issue of any material fact, and if there are issues of fact and the slightest doubt remains, a summary judgment cannot be granted, Williams v. City of Lake City, 62 So.2d 732.

In addition to the issues raised by the Defendant's pending discovery and motion to dismiss, Defendant contends that the actual promissory note that is in the courts file is not the original and is a fraud. On January 21, 2010, Defendant viewed the document in the court file that is alleged to be the original note. Defendant compared that document to the copy of mortgage loan documents that she received at the time of closing which are still in her possession. The copy and the original were made of the same paper – same weight, color, feel, look and size. The one in the court file is on clearly different paper than the copy. Additionally, Defendant is an expert at recognizing her signature. She closely examined her alleged signature on the document in the court file and found that to be lacking in authenticity as her original signature would leave an impression in the paper, which is not present in the document in the court file. Additionally, Defendant's recollection is that a black ink pen was used to sign her name, not blue, as is reflected in the document in the court file. (Exhibit A, Affidavit of Defendant JANE DOE .

WHEREFORE, Defendant prays that this Honorable Court deny Plaintiff’s Motion for Summary Judgment and for such other and further relief as this Honorable Court deems necessary and just.

 

Respectfully Submitted,

January 22, 2010

______________________

George Gingo, 879533

P.O. Box 838

Mims, FL 32754

321-264-9624 Office

321-383-1105 Fax

 

 

 

 

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing has been furnished by U.S. Mail, this 22ND day of January, 2010, to Anissa Bolton, 1800 N.W. 49th Street, Suite 120, Fort Lauderdale, FL 33309.

 

______________________________

George Gingo

 

 

  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT

OF FLORIDA, IN AND FOR VOLUSIA COUNTY

 

 

 

 

INDYMAC FEDERAL BANK, FSB, Case No.: 2009-CA-20189 CINS

Plaintiff,

v.

JANE DOE, et. al.,

Defendants.

____________________________________/

 

AFFIDAVIT

EXHIBIT A TO DEFENDANT JANE DOE’S

OPPOSITION TO MOTION FOR FINAL SUMMARY JUDGMENT

 

I, JANE DOE , hereby swear as follows:

1. I am the defendant in this action.

2. This declaration is based upon my personal knowledge, and if called upon as a

witness in this matter I could competently testify to the facts as set forth below.

3. On January 21, 2010, I viewed the document in the court file that is alleged to be the original note. I compared that document to the copy of mortgage loan documents that I received at the time of closing which are still in my possession. I was given the copy at the closing, at which time I very carefully compared the copy to what was to be the original. I found that the copy and the original were made of the same paper – same weight, color, feel, look and size. When I viewed the alleged note in the court file I found it is on clearly different paper than the copy.

4. Additionally, I am an expert at recognizing my signature. When I closely examined “my” alleged signature on the document in the court file I found it to be lacking in authenticity as my original signature would leave an impression in the paper, which is not present in the document in the court file. Additionally, my recollection is that I signed in black ink, not blue, as is reflected in the document in the court file.

 

 

 

5. I believe that the alleged note in the court file contains a forgery of my signature and the document is fraudulent.

I understand that I am swearing or affirming under oath to the truthfulness of the claims made in this petition and that the punishment for knowingly making a false statement includes fines and/or imprisonment.

 

______________________

JANE DOE

 

STATE OF FLORIDA )

COUNTY OF VOLUSIA )

Sworn to or affirmed and signed before me on January 22, 2010, by JANE DOE .

___________________________

NOTARY PUBLIC

_____Personally known

_____Produced Identification

Type of identification produced _________________________________

 

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To win the Summary Judgment, Plaintiff has to file their Affidavits. To fight against SJ, Defendants should strike Plaintiff's Affidavits and file them before the hearing date. Here is a sample of Florida Motion to Strike and its Memorandum. The UCC rules is applicable nationwide.
 
WELLS FARGO BANK, N.A., Successor By

Merger to Wells Fargo Bank Minnesota, National

Association, Solely in its Capacity as Trustee,

Under the Pooling And Servicing Agreement

Dated September 1, 1999, Home Equity Loan

Asset Backed Certificates, Series 1999-3,

Plaintiff,

vs.

John Smith al.,

Defendants.

/

DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S

"ORIGINAL NOTE" AND ALLONGES

COMES NOW the Defendant, John Smith , and pursuant to Rule 1.140(f) moves this honorable Court to strike the documents placed into the court file on October 17, 2009

referred to by the Plaintiff as the "original note," and in support thereof states as follows:

1. When the Plaintiff initially filed its Complaint On July 25, 2008 it failed to

support the Complaint with any original documentation, negotiable instrument, note or mortgage.

Attached to the Complaint was a photocopy of the May 21, 1999 promissory note obligating the Defendant to the "original lender" APPROVED, and a photocopy of an alleged allonge assigningthe note from "Approved Residential Mortgage Inc." (hereinafter "APPROVED") to "NorwestBank Minnesota N.A. As Trustee For Provident Bank Home Equity Loan Trust 1999-3"(hereinafter "NORWEST"). There was no documentation filed with the complaint connectingthe note or mortgage to the named Plaintiff WELLS FARGO BANK, N.A. (hereinafter "WELLS FARGO"). The Plaintiff at that time sought reestablishment of the original note which it claimedwas "lost, destroyed or stolen."

2. On October 17, 2008 the Plaintiff filed a document into the case file purported to

be the "Original Note" along with two allonges, one allonge being identical to the allonge filed with the Complaint, purportedly assigning the note to NORWEST, and the other allonge titled NOTE ALLONGE, which was not initially filed with the complaint, allegedly assigning an attached note from the Plaintiff WELLS FARGO to itself as trustee (hereinafter "WELLS FARGO allonge"). Copies of the note and allonges are attached as Exhibit B.

3. On February 10, 2009 the Plaintiff filed into the case file a copy of an Assignment

of Mortgage which assignment was executed on August 20, 2004 and filed into the Hernando County official records on September 9, 2004, a copy of which is attached herewith as Exhibit A.

4. Regardless of the document's title, the said Assignment of Mortgage assigned both the note and mortgage constituting the subject or res of this action to The Provident Bank, Inc., reading as follows in pertinent part:

"...APPROVED RESIDENTIAL MORTGAGE,...does convey, grant, bargain, sell,

assign, transfer and set over to: THE PROVIDENT BANK, INC., ...The described Mortgage, together with the certain note(s) described therein with all interest, all liens, and any rights due or to become due thereon..."

5. On February 16, 2010 the Defendant inspected the alleged "Original Note" placed in the file and denies its authenticity and that of the purported signature thereon (see "Affidavit of Defendant, Samuel Clay Adams In Opposition to Plaintiff's Motion for Summary Judgment" filed concurrently herewith and incorporated herein by reference thereto.

6. On the same date the Defendant observed that while there is generous room on the Note itself for indorsement, there is no indorsement on the Note, and the allonges filed with the note were not attached affixed to the note prior to filing.

7. Further the indorsements on the allonges were never verified by affidavit or testimony, were undated and unauthenticated by any corporate seal or stamp. Even if the alleged "original note" filed by the Plaintiff on October 17, 2008 is ruled to be authentic, it remains unenforceable because the alleged allonges are rendered invalid for violation of the rule of affixation to the note and authentication pursuant to F.S. § 673.2041(1) and Booker v. Sarasota Inc., 707 So.2d 886 (Fla.App. Dist.1 03/06/1998):

"The allonge, ultimately filed with the court had never previously been verified by affidavit or testimony, nor had it been provided to the court or to Booker in the form of an amended complaint. A Florida court may not consider an unauthenticated document in ruling on a motion for summary judgment, even where it appears that the such document, if properly authenticated, may have been dispositive. See Tunnell v. Hicks, 574 So. 2d 264, 266 (Fla. 1st DCA 1991)."

8. Furthermore, even if the alleged "original note" filed by the Plaintiff on October 17, 2008 is ruled to be authentic, it remains unenforceable because the alleged allonges are contradicted and invalidated by competing evidence entered by the Plaintiff in the recorded

Assignment of Mortgage (Exhibit A), showing another named signatory assigning both the note and mortgage to Provident Bank on August 20, 2004. This fact is corroborated by the aforementioned affidavit of title attorney Gregory D. Clark, Esq., filed concurrently herewith and fully incorporated herein by reference thereto. The allonges filed on October 17, 2008 are therefore not valid and must be stricken.

9. Furthermore the WELLS FARGO allonge filed on October 17, 2008 is a sham on its face as it allegedly assigned the res to itself, was not filed with the Complaint, and the

Plaintiff can not be allowed to amend the record with exhibits that did not exist when the action was filed.

WHEREFORE, the Defendant, John Smith , respectfully moves this court to strike the alleged "original note" along with the allonges filed therewith on October 17, 2008.

Respectfully submitted on this day of March, 2010.

John Smith

MEMORANDUM OF LAW

Regarding the note and allonges in this instant case: while there is generous room on the Note itself for indorsement, there is no indorsement on the Note, and the allonges were not previously affixed to the note. Further the indorsements on the allonges were never verified by affidavit or testimony, were undated and unauthenticated by any corporate seal or stamp.

Even if the alleged "original note" filed by the Plaintiff on October 17, 2008 is ruled to be authentic, it remains unenforceable because the alleged allonges are rendered invalid for violation of the rule of affixation to the note and authentication pursuant to F.S. § 673.2041(1) and Booker v.Sarasota Inc., 707 So.2d 886 (Fla.App. Dist.1 03/06/1998):

[17] Contrary to other arguments now advanced by Sarasota, Inc., the trial court could not simply assume that Sarasota, Inc. held the note, or that the photocopy of an allonge, filed after the hearing on the motion for summary judgment, was of appropriate evidentiary value. Booker has correctly pointed out that in order to be the real party in interest on a promissory note, the plaintiff must be the holder of the note. See Troupe v. Redner, 652 So. 2d 394, 395-396 (Fla. 2d DCA 1995).

Here, the allonge, attached to the complaint, and referred to by Sarasota Inc.'s affidavit in support of its motion for summary judgment, showed an assignment of the note from an institution other than Citizens and Builders. The allonge, ultimately filed with the court had never previously been verified by affidavit or testimony, nor had it been provided to the court or to Booker in the form of an amended complaint.

 A Florida court may not consider an unauthenticated document in ruling on a motion for

summary judgment, even where it appears that the such document, if properly authenticated, may have been dispositive. See Tunnell v. Hicks, 574 So. 2d 264, 266

(Fla. 1st DCA 1991).

[19] "An allonge is a piece of paper annexed to a negotiable instrument or promissory note, on which to write endorsements for which there is no room on the instrument itself. Such must be so firmly affixed thereto as to become a part thereof." Black's Law Dictionary 76 (6th ed. 1990). Florida's Uniform Commercial Code does not specifically mention an allonge, but notes that "for the purpose of determining whether a signature is made on an instrument, a paper affixed to the instrument is part of the instrument. § 673.2041(1), Fla. Stat. (1995)." Federal rulings on the Uniform Commercial Code (UCC) in regard to the negotiation and enforcement of negotiable instruments are applicable to this issue in that the UCC is in effect enacted into the Florida statutes.

In Adams v. Madison Realty & Development Inc., 853 F.2d 163

(3rd Cir. 07/22/1988) the 3rd Circuit ruled as follows, with emphasis added:

[32] Article 3 of the Uniform Commercial Code incorporated many portions ofits predecessor, the Uniform Negotiable Instruments Law (NIL), drafted in 1896 by the National Conference of Commissioners on Uniform State Laws. By 1924, the NIL had been adopted in every state. See 2 F. Hart & W. WiIlier, Commercial Paper Under the Uniform Commercial Code § 1.06, at 1-25 to -26 (1988). When it was transplanted into the 1956 draft of the Uniform Commercial Code, the indorsements provision was altered in only a minor respect. Section 31 of the NIL had specified that a proper indorsement "must be written on the instrument itself or upon a paper attached thereto." The Code substituted the words "so firmly affixed as to become a part thereof" for the phrase "upon a paper attached thereto."...

[34] A holder in due course must take the instrument for value, in good faith,and without notice that it is overdue, that it has been dishonored, or that a claim or defense to it exists on the part of any person. See U.C.C. § 3-302(1). But preliminarily, a person seeking to become a holder in due course must satisfy the threshold requirements for becoming a "holder," the critical issue on this appeal. [35] The Code defines a holder as one 'who is in possession of . . . an instrument . . . drawn, issued or indorsed to him or to his order." U.C.C. § 1- Defendant's Motion to Strike Note and Allonges - page 5 of 6

201(20). Mere ownership or possession of a note is insufficient to qualify an individual as a "holder." The instrument must be obtained through a process the Code terms "negotiation," defined as "the transfer of an instrument in such form that the transferee becomes a holder." U.C.C. § 3-202(1). If the instrument is payable to order -- as is the case with the notes here -- negotiation is accomplished "by delivery with any necessary indorsement." Id.

[36] In explaining the requirement that the indorsement be on or firmly affixed to the instrument, the Official Comment states that the Code "follows decisions holding that a purported indorsement on a mortgage or other separate paper pinned or clipped to an instrument is not sufficient for negotiation. The indorsement must be on the instrument itself or on a paper intended for the purpose which is so firmly affixed to the instrument as to become an extension or part of it. Such a paper is called an allonge." U.C.C. § 3-202 Official Code

Comment (3)...

[38] The Code's requirement that an indorsement be "firmly affixed" to its instrument is a settled feature of commercial law, adopted verbatim by every American state, the District of Columbia, and the Virgin Islands. See 5 R. Anderson, Uniform Commercial Code § 3-202:2, at 416 (3d ed. 1984) (citing codifications). With a unanimity unusual in decisional law, the directive has been faithfully observed.

[39] The historical origins of the provision have been chronicled to the days of the Law Merchant. See Pribus v. Bush, 118 Cal. App. 3d 1003, 173 Cal. Rptr. 747

749 (1981). The practice of multiple indorsements which accompanied the growth in commerce eventually led to acceptance of the use of allonges. See id.; Estrada v. River Oaks Bank & Trust Co., 550 S.W.2d 719, 725 (Tex. Ct. App. - Houston [14th Dist.] 1977, writ ref'd n.r.e.). Even today, however, numerous jurisdictions permit allonges only where, because of multiple indorsements, no additional space for signatures remains on the negotiable instrument. See, e.g., Pribus, 173 Cal. Rptr. at 751; Tallahassee Bank & Trust Co. v. Raines, 125 Ga. App. 263, 187 S.E.2d 320, 321 (1972). But see Crosby v. Roub, 16 Wis. 616, 723-24 (1863) (allonge permitted even where space remains on note).

[40] When the drafters of the Uniform Commercial Code replaced the term "attached" in the NIL with the phrase "firmly affixed," they intended to make the use of allonges more difficult. See Hills v. Gardiner Savings Institution, 309 A.2d 877, 880-81 (Me. 1973); Estrada, 550 S.W.2d at 728; 5 Anderson, supra, § 3-202:05. Courts have advanced two justifications for the firmly-affixed requirement. The California Court of Appeals reasoned that the provision serves to prevent fraud, remarking that a signature innocently placed upon an innocuous sheet of paper could be fraudulently attached to a negotiable instrument in order to simulate an indorsement. Pribus, 173 Cal. Rptr. at 750. But cf. Lamson v.Commercial Credit Corp., 187 Colo. 382, 531 P.2d 966, 968 (1975) (allonge consisting of two legal sheets stapled to two small checks held valid because signing on checks valid themselves would have been impossible; "stapling is the modern equivalent of gluing or pasting").

[41] The affixation requirement has also been cited for its utility in preserving a traceable chain of title, thus furthering the Code's goal of free and unimpeded negotiability of instruments. Nearly a century ago, the Supreme Court of Georgia declared it "indispensably necessary" that negotiable instruments "should carry within them the indicia by which their ownership is to be determined; otherwise, their value as a circulating medium would be largely curtailed, if not entirelydestroyed." Haug v. Riley, 101 Ga. 372, 29 S.E. 44, 46 (1897). See also Crosby, 16 Wis. at 724 (permanently attached indorsements to instrument "travel with it wherever it might go"). Chancellor Hawkland writes that it would be "unreasonable to impose upon the indorsee the risk that the present holder or a prior holder had negotiated the instrument to someone not in the apparent chain of title by virtue of a separate document." 4 W. Hawkland & L. Lawrence, Uniform Commercial Code Series § 3-202:05 (1984).

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To win the Summary Judgment, Plaintiff has to file their Affidavits. To fight against SJ, Defendants should strike Plaintiff's Affidavits and file them before the hearing date. Here is a sample of Florida Motion to Strike and its Memorandum. The UCC rules is applicable nationwide.
 
WELLS FARGO BANK, N.A., Successor By

Merger to Wells Fargo Bank Minnesota, National

Association, Solely in its Capacity as Trustee,

Under the Pooling And Servicing Agreement

Dated September 1, 1999, Home Equity Loan

Asset Backed Certificates, Series 1999-3,

Plaintiff,

vs.

John Smith al.,

Defendants.

/

DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S

"ORIGINAL NOTE" AND ALLONGES

COMES NOW the Defendant, John Smith , and pursuant to Rule 1.140(f) moves this honorable Court to strike the documents placed into the court file on October 17, 2009

referred to by the Plaintiff as the "original note," and in support thereof states as follows:

1. When the Plaintiff initially filed its Complaint On July 25, 2008 it failed to

support the Complaint with any original documentation, negotiable instrument, note or mortgage.

Attached to the Complaint was a photocopy of the May 21, 1999 promissory note obligating the Defendant to the "original lender" APPROVED, and a photocopy of an alleged allonge assigningthe note from "Approved Residential Mortgage Inc." (hereinafter "APPROVED") to "NorwestBank Minnesota N.A. As Trustee For Provident Bank Home Equity Loan Trust 1999-3"(hereinafter "NORWEST"). There was no documentation filed with the complaint connectingthe note or mortgage to the named Plaintiff WELLS FARGO BANK, N.A. (hereinafter "WELLS FARGO"). The Plaintiff at that time sought reestablishment of the original note which it claimedwas "lost, destroyed or stolen."

2. On October 17, 2008 the Plaintiff filed a document into the case file purported to

be the "Original Note" along with two allonges, one allonge being identical to the allonge filed with the Complaint, purportedly assigning the note to NORWEST, and the other allonge titled NOTE ALLONGE, which was not initially filed with the complaint, allegedly assigning an attached note from the Plaintiff WELLS FARGO to itself as trustee (hereinafter "WELLS FARGO allonge"). Copies of the note and allonges are attached as Exhibit B.

3. On February 10, 2009 the Plaintiff filed into the case file a copy of an Assignment

of Mortgage which assignment was executed on August 20, 2004 and filed into the Hernando County official records on September 9, 2004, a copy of which is attached herewith as Exhibit A.

4. Regardless of the document's title, the said Assignment of Mortgage assigned both the note and mortgage constituting the subject or res of this action to The Provident Bank, Inc., reading as follows in pertinent part:

"...APPROVED RESIDENTIAL MORTGAGE,...does convey, grant, bargain, sell,

assign, transfer and set over to: THE PROVIDENT BANK, INC., ...The described Mortgage, together with the certain note(s) described therein with all interest, all liens, and any rights due or to become due thereon..."

5. On February 16, 2010 the Defendant inspected the alleged "Original Note" placed in the file and denies its authenticity and that of the purported signature thereon (see "Affidavit of Defendant, Samuel Clay Adams In Opposition to Plaintiff's Motion for Summary Judgment" filed concurrently herewith and incorporated herein by reference thereto.

6. On the same date the Defendant observed that while there is generous room on the Note itself for indorsement, there is no indorsement on the Note, and the allonges filed with the note were not attached affixed to the note prior to filing.

7. Further the indorsements on the allonges were never verified by affidavit or testimony, were undated and unauthenticated by any corporate seal or stamp. Even if the alleged "original note" filed by the Plaintiff on October 17, 2008 is ruled to be authentic, it remains unenforceable because the alleged allonges are rendered invalid for violation of the rule of affixation to the note and authentication pursuant to F.S. § 673.2041(1) and Booker v. Sarasota Inc., 707 So.2d 886 (Fla.App. Dist.1 03/06/1998):

"The allonge, ultimately filed with the court had never previously been verified by affidavit or testimony, nor had it been provided to the court or to Booker in the form of an amended complaint. A Florida court may not consider an unauthenticated document in ruling on a motion for summary judgment, even where it appears that the such document, if properly authenticated, may have been dispositive. See Tunnell v. Hicks, 574 So. 2d 264, 266 (Fla. 1st DCA 1991)."

8. Furthermore, even if the alleged "original note" filed by the Plaintiff on October 17, 2008 is ruled to be authentic, it remains unenforceable because the alleged allonges are contradicted and invalidated by competing evidence entered by the Plaintiff in the recorded

Assignment of Mortgage (Exhibit A), showing another named signatory assigning both the note and mortgage to Provident Bank on August 20, 2004. This fact is corroborated by the aforementioned affidavit of title attorney Gregory D. Clark, Esq., filed concurrently herewith and fully incorporated herein by reference thereto. The allonges filed on October 17, 2008 are therefore not valid and must be stricken.

9. Furthermore the WELLS FARGO allonge filed on October 17, 2008 is a sham on its face as it allegedly assigned the res to itself, was not filed with the Complaint, and the

Plaintiff can not be allowed to amend the record with exhibits that did not exist when the action was filed.

WHEREFORE, the Defendant, John Smith , respectfully moves this court to strike the alleged "original note" along with the allonges filed therewith on October 17, 2008.

Respectfully submitted on this day of March, 2010.

John Smith

MEMORANDUM OF LAW

Regarding the note and allonges in this instant case: while there is generous room on the Note itself for indorsement, there is no indorsement on the Note, and the allonges were not previously affixed to the note. Further the indorsements on the allonges were never verified by affidavit or testimony, were undated and unauthenticated by any corporate seal or stamp.

Even if the alleged "original note" filed by the Plaintiff on October 17, 2008 is ruled to be authentic, it remains unenforceable because the alleged allonges are rendered invalid for violation of the rule of affixation to the note and authentication pursuant to F.S. § 673.2041(1) and Booker v.Sarasota Inc., 707 So.2d 886 (Fla.App. Dist.1 03/06/1998):

[17] Contrary to other arguments now advanced by Sarasota, Inc., the trial court could not simply assume that Sarasota, Inc. held the note, or that the photocopy of an allonge, filed after the hearing on the motion for summary judgment, was of appropriate evidentiary value. Booker has correctly pointed out that in order to be the real party in interest on a promissory note, the plaintiff must be the holder of the note. See Troupe v. Redner, 652 So. 2d 394, 395-396 (Fla. 2d DCA 1995).

Here, the allonge, attached to the complaint, and referred to by Sarasota Inc.'s affidavit in support of its motion for summary judgment, showed an assignment of the note from an institution other than Citizens and Builders. The allonge, ultimately filed with the court had never previously been verified by affidavit or testimony, nor had it been provided to the court or to Booker in the form of an amended complaint.

 A Florida court may not consider an unauthenticated document in ruling on a motion for

summary judgment, even where it appears that the such document, if properly authenticated, may have been dispositive. See Tunnell v. Hicks, 574 So. 2d 264, 266

(Fla. 1st DCA 1991).

[19] "An allonge is a piece of paper annexed to a negotiable instrument or promissory note, on which to write endorsements for which there is no room on the instrument itself. Such must be so firmly affixed thereto as to become a part thereof." Black's Law Dictionary 76 (6th ed. 1990). Florida's Uniform Commercial Code does not specifically mention an allonge, but notes that "for the purpose of determining whether a signature is made on an instrument, a paper affixed to the instrument is part of the instrument. § 673.2041(1), Fla. Stat. (1995)." Federal rulings on the Uniform Commercial Code (UCC) in regard to the negotiation and enforcement of negotiable instruments are applicable to this issue in that the UCC is in effect enacted into the Florida statutes.

In Adams v. Madison Realty & Development Inc., 853 F.2d 163

(3rd Cir. 07/22/1988) the 3rd Circuit ruled as follows, with emphasis added:

[32] Article 3 of the Uniform Commercial Code incorporated many portions ofits predecessor, the Uniform Negotiable Instruments Law (NIL), drafted in 1896 by the National Conference of Commissioners on Uniform State Laws. By 1924, the NIL had been adopted in every state. See 2 F. Hart & W. WiIlier, Commercial Paper Under the Uniform Commercial Code § 1.06, at 1-25 to -26 (1988). When it was transplanted into the 1956 draft of the Uniform Commercial Code, the indorsements provision was altered in only a minor respect. Section 31 of the NIL had specified that a proper indorsement "must be written on the instrument itself or upon a paper attached thereto." The Code substituted the words "so firmly affixed as to become a part thereof" for the phrase "upon a paper attached thereto."...

[34] A holder in due course must take the instrument for value, in good faith,and without notice that it is overdue, that it has been dishonored, or that a claim or defense to it exists on the part of any person. See U.C.C. § 3-302(1). But preliminarily, a person seeking to become a holder in due course must satisfy the threshold requirements for becoming a "holder," the critical issue on this appeal. [35] The Code defines a holder as one 'who is in possession of . . . an instrument . . . drawn, issued or indorsed to him or to his order." U.C.C. § 1- Defendant's Motion to Strike Note and Allonges - page 5 of 6

201(20). Mere ownership or possession of a note is insufficient to qualify an individual as a "holder." The instrument must be obtained through a process the Code terms "negotiation," defined as "the transfer of an instrument in such form that the transferee becomes a holder." U.C.C. § 3-202(1). If the instrument is payable to order -- as is the case with the notes here -- negotiation is accomplished "by delivery with any necessary indorsement." Id.

[36] In explaining the requirement that the indorsement be on or firmly affixed to the instrument, the Official Comment states that the Code "follows decisions holding that a purported indorsement on a mortgage or other separate paper pinned or clipped to an instrument is not sufficient for negotiation. The indorsement must be on the instrument itself or on a paper intended for the purpose which is so firmly affixed to the instrument as to become an extension or part of it. Such a paper is called an allonge." U.C.C. § 3-202 Official Code

Comment (3)...

[38] The Code's requirement that an indorsement be "firmly affixed" to its instrument is a settled feature of commercial law, adopted verbatim by every American state, the District of Columbia, and the Virgin Islands. See 5 R. Anderson, Uniform Commercial Code § 3-202:2, at 416 (3d ed. 1984) (citing codifications). With a unanimity unusual in decisional law, the directive has been faithfully observed.

[39] The historical origins of the provision have been chronicled to the days of the Law Merchant. See Pribus v. Bush, 118 Cal. App. 3d 1003, 173 Cal. Rptr. 747

749 (1981). The practice of multiple indorsements which accompanied the growth in commerce eventually led to acceptance of the use of allonges. See id.; Estrada v. River Oaks Bank & Trust Co., 550 S.W.2d 719, 725 (Tex. Ct. App. - Houston [14th Dist.] 1977, writ ref'd n.r.e.). Even today, however, numerous jurisdictions permit allonges only where, because of multiple indorsements, no additional space for signatures remains on the negotiable instrument. See, e.g., Pribus, 173 Cal. Rptr. at 751; Tallahassee Bank & Trust Co. v. Raines, 125 Ga. App. 263, 187 S.E.2d 320, 321 (1972). But see Crosby v. Roub, 16 Wis. 616, 723-24 (1863) (allonge permitted even where space remains on note).

[40] When the drafters of the Uniform Commercial Code replaced the term "attached" in the NIL with the phrase "firmly affixed," they intended to make the use of allonges more difficult. See Hills v. Gardiner Savings Institution, 309 A.2d 877, 880-81 (Me. 1973); Estrada, 550 S.W.2d at 728; 5 Anderson, supra, § 3-202:05. Courts have advanced two justifications for the firmly-affixed requirement. The California Court of Appeals reasoned that the provision serves to prevent fraud, remarking that a signature innocently placed upon an innocuous sheet of paper could be fraudulently attached to a negotiable instrument in order to simulate an indorsement. Pribus, 173 Cal. Rptr. at 750. But cf. Lamson v.Commercial Credit Corp., 187 Colo. 382, 531 P.2d 966, 968 (1975) (allonge consisting of two legal sheets stapled to two small checks held valid because signing on checks valid themselves would have been impossible; "stapling is the modern equivalent of gluing or pasting").

[41] The affixation requirement has also been cited for its utility in preserving a traceable chain of title, thus furthering the Code's goal of free and unimpeded negotiability of instruments. Nearly a century ago, the Supreme Court of Georgia declared it "indispensably necessary" that negotiable instruments "should carry within them the indicia by which their ownership is to be determined; otherwise, their value as a circulating medium would be largely curtailed, if not entirelydestroyed." Haug v. Riley, 101 Ga. 372, 29 S.E. 44, 46 (1897). See also Crosby, 16 Wis. at 724 (permanently attached indorsements to instrument "travel with it wherever it might go"). Chancellor Hawkland writes that it would be "unreasonable to impose upon the indorsee the risk that the present holder or a prior holder had negotiated the instrument to someone not in the apparent chain of title by virtue of a separate document." 4 W. Hawkland & L. Lawrence, Uniform Commercial Code Series § 3-202:05 (1984).

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Diane Dixon of Litton Loan signed as VP of Fremont Investment and Loan with an Assignment of Foreclosure after the Summary Judgement from Fremont with MERS as Nominee--the Notary of this Assignment Doc is Brenda McKinzy in Texas, but Fremont Investment and Loans is in California--also, Diane Dixon is also VP of Litton Loan Servicing--the foreclosure suit is dated Dec, 2007--Fremont went bankrupt June, 2008, the Assignment of Foreclosure by VP Diane Dixon of Fremont is dated July, 2008, and Christopher Spradling of Litton signed off on the Affidavitt of Indebtedness on my law suit for foreclosure.  Also, Fremont lost the note Dec., 2007, but my attorney said there is a copy of it in the file now.  Now, Fremont has a new attorney, and Diane Dixon signed off on the transfer as VP of Litton Loan Servicing in October, 2010.  Anyone else dealing with these people please e-mail me.
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Where is a good place to find an example of a Motion to Strike Affidavit in Support of Plaintiff's Motion for Summary Judgment for Ohio?  Ann's information was great, but peppered with Florida case law (duh?

Thanks!
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Where is a good place to find an example of a Motion to Strike Affidavit in Support of Plaintiff's Motion for Summary Judgment for Ohio?  Ann's information was great, but peppered with Florida case law (duh?

Thanks!
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Ann or anybody else for that matter

Does anybody have some good samples of oppositions for summary judgement for NY.  It seems like there arent many good pleadings in my courthouse.  I know that florida is ground zero for this mess, but there has to be somebody with great pleadings w ny case law to share.
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