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William A. Roper, Jr.
In many other threads, we have discussed a variety of various evidentiary defects.  But there is one specific type of evidentiary defect that has probably long merited its very own thread.  This is the defect associated with either (a) failure to attach the purported exhibits to the authenticating affidavit OR (b) attachment of these exhibits to the affidavit AFTER the affidavit has already been signed.

Instances where this has occured appear within a variety of cases in various jurisdictions.  And in cases where there are several evidentiary defects, it is probably useful to both collect and chronicle the holdings within a single coherent thread.

The Rules of Civil Proecdure setting forth the requirements of proof, particularly in a summary judgment setting vary from jurisdiction to jurisdiction.

Under the Federal Rules, after which the rules of a number of states model their own rules, the Rule for summary judgment is Rule 56:

http://www.law.cornell.edu/rules/frcp/Rule56.htm


But the states have not uniformly adopted the various Federal amendments to Rule 56 and often the state Rule is slightly different.  The language of the Ohio Rule as to the evidentiary requirement is exemplary:
"(E) Form of affidavits; further testimony; defense required.  Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit.  Sworn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit.  The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.  When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.  If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.  [emphasis added]"
http://www.sconet.state.oh.us/LegalResources/Rules/civil/CivilProcedure.pdf

Although Texas doesn't follow the Federal Rule numbering, the language of the summary judgment Rule, Rule 166a is similar to that found in other states:
"(f) Form of Affidavits; Further Testimony.  Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.  Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.  The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.  Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.  [emphasis added]"
http://www.supreme.courts.state.tx.us/rules/trcp/rcp_all.pdf
*

Separate from the requirement that the exhibits be attached to the affidavit or served therewith, there is the implicit requirement that any authentication appearing in an affidavit MUST BE BY PERSONAL KNOWLEDGE.

And HOW can a person swear to the authenticity of a document they have never actually seen?

*

In a series of future posts, I intend to share both cases where failure to properly attach or the belated attachment is discussed together with examples which show the character of this mischief.

I would encourage those with good examples to share them!
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William A. Roper, Jr.
Here are a several authoritative Texas cases which illustrate the concept in a non-foreclosure setting:
“The failure to attach copies of the pleadings and documentary evidence in the various causes referred to in the Smith affidavit renders such affidavit a nullity under the ruling of the Supreme Court of Texas in Gardner v. Martin et al., Tex., 345 S.W.2d 274.”  Langdeau v. Dick, 356 S.W.2d 945, 1962 Tex. App. LEXIS 2417, 1962 Tex. App. LEXIS 2418, 1962 Tex. App. LEXIS 2419 (Tex. App. — Austin 1962, writ ref'd n.r.e.).
http://scholar.google.com/scholar_case?case=8368815638181077280


“Verified copies of documents, in order to constitute part of the summary judgment evidence, must be attached to the affidavit.  Perkins v. Crittenden, 462 S.W.2d 565 (Tex.1970).”  Trimble v. Gulf Paint & Battery, Inc., No. 01-86-0363-CV, 728 S.W.2d 887, 1987 Tex. App. LEXIS 6962 (Tex. App.—Houston [1st Dist.] 1987, no writ).
http://scholar.google.com/scholar_case?case=5228542517127352581


"The failure to attach copies of documents referred to in the affidavit renders the affidavit a nullity.  Langdeau v. Dick, 356 S.W.2d 945, 957 ((Tex.Civ.App.-Austin 1962, writ ref'd n.r.e.).  In Rodriquez v. Texas Farmers Ins. Co., 903 S.W.2d 499, 505-06 ((Tex.App.-Amarillo 1995, writ denied), the court of appeals upheld the trial court's exclusion of the defendants' affidavit in support of their response to the plaintiffs motion for summary judgment where the affiant relied on documents that were not attached to the affidavit."  Kleven v. Texas Dept. of Criminal Justice, No. 06-01-00078-CV, 69 S.W.3d 341 (Tex. App. -- Texarkana 2002)
http://scholar.google.com/scholar_case?case=17549713670227259090

When the exhibits are NOT attached to the affidavit, OBJECT!
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William A. Roper, Jr.
Exhibits in Florida

The Florida Summary Judgment Rule is Rule 1.510.  The evidentiary details are in subparagraph (e), which reads:
"(e) Form of Affidavits; Further Testimony.  Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.  Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.  The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.  [emphasis added]"
http://phonl.com/fl_law/rules/frcp/frcp1510.htm
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William A. Roper, Jr.
The recent Ohio appellate case Bank of America, N.A. v. Miller gives us a very nice example of the failure to attach an exhibit:
"Rybarczyk states that he has custody and personal knowledge of the accounts of “said company” and that the accounts of the Millers are in default in accordance with the mortgage and note attached to the complaint.  Contrary to Rybarczyk’s affidavit, the Millers’ note was not attached to the complaint – it was filed a month later.  Rybarcyzk’s affidavit was signed and notarized in Erie County, New York."

See my prior thread:

Another Terrific Ohio Appellate Decision on Evidentiary Issues: Bank of America, N.A. v. Miller

http://ssgoldstar.websitetoolbox.com/post?id=5166263

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William A. Roper, Jr.
The recent non-mortgage Ohio appellate case Target National Bank v. Enos gives a very nice example of documents conspicuously attached after execution of the affidavit:

Target National Bank v. Enos, No. 25268, 2010 Ohio 6307; 2010 Ohio App. LEXIS 5276 (Oh. App. 9th Dist. December 22, 2010)
http://www.sconet.state.oh.us/rod/docs/pdf/9/2010/2010-ohio-6307.pdf
http://scholar.google.com/scholar_case?case=3390492879935248005

Look at the affidavit and plaintiff's exhibits very, very carefully!  Very often, there are subtle defects which can eviscerate the plaintiff's case!

BE CAREFUL ABOUT TAKING THE PLAINTIFF TO SCHOOL ABOUT THESE DEFECTS PREMATURELY!  Depending upon the nature of the defects and the Rules of the jurisdiction, these defects may need to be expressly pointed out in a written opposition.  But the precise requirements of the opposition also may VARY.

For example, very often there is a requirement that opposing affidavits be served in advance of the hearing.  But this might NOT be the case with other supplemental argument or briefs.  In some places, the plaintiff is entitled to cure some types of identified defects in the form of the affidavit.  But in other places, the defects might not be curable and could be fatal.
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Angelo
Here is new yorks statute, I think

 §  3020.  Verification.  (a)  Generally. A verification is a statement
  under oath that the pleading is true to the knowledge of  the  deponent,
  except  as  to matters alleged on information and belief, and that as to
  those matters he believes it to be true. Unless otherwise  specified  by
  law,  where  a pleading is verified, each subsequent pleading shall also
  be verified, except the answer of an infant and except as to  matter  in
  the  pleading  concerning  which  the  party  would  be  privileged from
  testifying as a witness.    Where  the  complaint  is  not  verified,  a
  counterclaim,  cross-claim  or  third-party  claim  in the answer may be
  separately verified in the same manner and with the same effect as if it
  were a separate pleading.
    (b) When answer must be verified. An answer shall be verified:
    1. when the complaint charges the defendant with having  confessed  or
  suffered   a  judgment,  executed  a  conveyance,  assignment  or  other
  instrument, or transferred or delivered money or personal property  with
  intent  to hinder, delay or defraud his creditors, or with being a party
  or privy to such a  transaction  by  another  person  with  like  intent
  towards  the  creditors  of  that  person,  or  with  any fraud whatever
  affecting a right or the property of another; or
    2. in an action against a  corporation  to  recover  damages  for  the
  non-payment  of  a  promissory  note  or  other evidence of debt for the
  absolute payment of money upon demand or at a particular time.
    (c) Defense not involving the merits. A defense which does not involve
  the merits of the action shall be verified.
    (d) By whom verification made. The verification of a pleading shall be
  made by the affidavit of the party, or, if two or more parties united in
  interest are  pleading  together,  by  at  least  one  of  them  who  is
  acquainted with the facts, except:
    1.  if  the party is a domestic corporation, the verification shall be
  made by an officer thereof and shall be deemed  a  verification  by  the
  party;
    2.  if  the  party  is  the  state, a governmental subdivision, board,
  commission, or agency, or a public officer in behalf of any of them, the
  verification may be made by any person acquainted with the facts; and
    3. if the party is a foreign corporation, or  is  not  in  the  county
  where  the  attorney has his office, or if there are two or more parties
  united in interest and pleading together and  none  of  them  acquainted
  with  the  facts  is  within that county, or if the action or defense is
  founded upon a written instrument for the payment of money only which is
  in the possession of an agent or the attorney, or if  all  the  material
  allegations  of  the  pleading  are  within the personal knowledge of an
  agent or the attorney, the verification may be made  by  such  agent  or
  attorney.
 §  3020.  Verification.  (a)  Generally. A verification is a statement
  under oath that the pleading is true to the knowledge of  the  deponent,
  except  as  to matters alleged on information and belief, and that as to
  those matters he believes it to be true. Unless otherwise  specified  by
  law,  where  a pleading is verified, each subsequent pleading shall also
  be verified, except the answer of an infant and except as to  matter  in
  the  pleading  concerning  which  the  party  would  be  privileged from
  testifying as a witness.    Where  the  complaint  is  not  verified,  a
  counterclaim,  cross-claim  or  third-party  claim  in the answer may be
  separately verified in the same manner and with the same effect as if it
  were a separate pleading.
    (b) When answer must be verified. An answer shall be verified:
    1. when the complaint charges the defendant with having  confessed  or
  suffered   a  judgment,  executed  a  conveyance,  assignment  or  other
  instrument, or transferred or delivered money or personal property  with
  intent  to hinder, delay or defraud his creditors, or with being a party
  or privy to such a  transaction  by  another  person  with  like  intent
  towards  the  creditors  of  that  person,  or  with  any fraud whatever
  affecting a right or the property of another; or
    2. in an action against a  corporation  to  recover  damages  for  the
  non-payment  of  a  promissory  note  or  other evidence of debt for the
  absolute payment of money upon demand or at a particular time.
    (c) Defense not involving the merits. A defense which does not involve
  the merits of the action shall be verified.
    (d) By whom verification made. The verification of a pleading shall be
  made by the affidavit of the party, or, if two or more parties united in
  interest are  pleading  together,  by  at  least  one  of  them  who  is
  acquainted with the facts, except:
    1.  if  the party is a domestic corporation, the verification shall be
  made by an officer thereof and shall be deemed  a  verification  by  the
  party;
    2.  if  the  party  is  the  state, a governmental subdivision, board,
  commission, or agency, or a public officer in behalf of any of them, the
  verification may be made by any person acquainted with the facts; and
    3. if the party is a foreign corporation, or  is  not  in  the  county
  where  the  attorney has his office, or if there are two or more parties
  united in interest and pleading together and  none  of  them  acquainted
  with  the  facts  is  within that county, or if the action or defense is
  founded upon a written instrument for the payment of money only which is
  in the possession of an agent or the attorney, or if  all  the  material
  allegations  of  the  pleading  are  within the personal knowledge of an
  agent or the attorney, the verification may be made  by  such  agent  or
  attorney.

 Rule  3021.  Form  of  affidavit  of  verification.  The  affidavit of
  verification must be to the effect that the  pleading  is  true  to  the
  knowledge of the deponent, except as to the matters therein stated to be
  alleged  on  information  and  belief,  and  that as to those matters he
  believes it to be true. If it is made by a person other than the  party,
  he  must  set forth in the affidavit the grounds of his belief as to all
  matters not stated upon his knowledge and the reason why it is not  made
  by the party.

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Bill

Angelo wrote:
Here is new yorks statute, I think

 §  3020.  Verification.  (a)  Generally. A verification is a statement
  under oath that the pleading is true to the knowledge of  the  deponent,
  except  as  to matters alleged on information and belief, and that as to
  those matters he believes it to be true. Unless otherwise  specified  by
  law,  where  a pleading is verified, each subsequent pleading shall also
  be verified, except the answer of an infant and except as to  matter  in
  the  pleading  concerning  which  the  party  would  be  privileged from
  testifying as a witness.    Where  the  complaint  is  not  verified,  a
  counterclaim,  cross-claim  or  third-party  claim  in the answer may be
  separately verified in the same manner and with the same effect as if it
  were a separate pleading.
    (b) When answer must be verified. An answer shall be verified:
    1. when the complaint charges the defendant with having  confessed  or
  suffered   a  judgment,  executed  a  conveyance,  assignment  or  other
  instrument, or transferred or delivered money or personal property  with
  intent  to hinder, delay or defraud his creditors, or with being a party
  or privy to such a  transaction  by  another  person  with  like  intent
  towards  the  creditors  of  that  person,  or  with  any fraud whatever
  affecting a right or the property of another; or
    2. in an action against a  corporation  to  recover  damages  for  the
  non-payment  of  a  promissory  note  or  other evidence of debt for the
  absolute payment of money upon demand or at a particular time.
    (c) Defense not involving the merits. A defense which does not involve
  the merits of the action shall be verified.
    (d) By whom verification made. The verification of a pleading shall be
  made by the affidavit of the party, or, if two or more parties united in
  interest are  pleading  together,  by  at  least  one  of  them  who  is
  acquainted with the facts, except:
    1.  if  the party is a domestic corporation, the verification shall be
  made by an officer thereof and shall be deemed  a  verification  by  the
  party;
    2.  if  the  party  is  the  state, a governmental subdivision, board,
  commission, or agency, or a public officer in behalf of any of them, the
  verification may be made by any person acquainted with the facts; and
    3. if the party is a foreign corporation, or  is  not  in  the  county
  where  the  attorney has his office, or if there are two or more parties
  united in interest and pleading together and  none  of  them  acquainted
  with  the  facts  is  within that county, or if the action or defense is
  founded upon a written instrument for the payment of money only which is
  in the possession of an agent or the attorney, or if  all  the  material
  allegations  of  the  pleading  are  within the personal knowledge of an
  agent or the attorney, the verification may be made  by  such  agent  or
  attorney.
 §  3020.  Verification.  (a)  Generally. A verification is a statement
  under oath that the pleading is true to the knowledge of  the  deponent,
  except  as  to matters alleged on information and belief, and that as to
  those matters he believes it to be true. Unless otherwise  specified  by
  law,  where  a pleading is verified, each subsequent pleading shall also
  be verified, except the answer of an infant and except as to  matter  in
  the  pleading  concerning  which  the  party  would  be  privileged from
  testifying as a witness.    Where  the  complaint  is  not  verified,  a
  counterclaim,  cross-claim  or  third-party  claim  in the answer may be
  separately verified in the same manner and with the same effect as if it
  were a separate pleading.
    (b) When answer must be verified. An answer shall be verified:
    1. when the complaint charges the defendant with having  confessed  or
  suffered   a  judgment,  executed  a  conveyance,  assignment  or  other
  instrument, or transferred or delivered money or personal property  with
  intent  to hinder, delay or defraud his creditors, or with being a party
  or privy to such a  transaction  by  another  person  with  like  intent
  towards  the  creditors  of  that  person,  or  with  any fraud whatever
  affecting a right or the property of another; or
    2. in an action against a  corporation  to  recover  damages  for  the
  non-payment  of  a  promissory  note  or  other evidence of debt for the
  absolute payment of money upon demand or at a particular time.
    (c) Defense not involving the merits. A defense which does not involve
  the merits of the action shall be verified.
    (d) By whom verification made. The verification of a pleading shall be
  made by the affidavit of the party, or, if two or more parties united in
  interest are  pleading  together,  by  at  least  one  of  them  who  is
  acquainted with the facts, except:
    1.  if  the party is a domestic corporation, the verification shall be
  made by an officer thereof and shall be deemed  a  verification  by  the
  party;
    2.  if  the  party  is  the  state, a governmental subdivision, board,
  commission, or agency, or a public officer in behalf of any of them, the
  verification may be made by any person acquainted with the facts; and
    3. if the party is a foreign corporation, or  is  not  in  the  county
  where  the  attorney has his office, or if there are two or more parties
  united in interest and pleading together and  none  of  them  acquainted
  with  the  facts  is  within that county, or if the action or defense is
  founded upon a written instrument for the payment of money only which is
  in the possession of an agent or the attorney, or if  all  the  material
  allegations  of  the  pleading  are  within the personal knowledge of an
  agent or the attorney, the verification may be made  by  such  agent  or
  attorney.

 Rule  3021.  Form  of  affidavit  of  verification.  The  affidavit of
  verification must be to the effect that the  pleading  is  true  to  the
  knowledge of the deponent, except as to the matters therein stated to be
  alleged  on  information  and  belief,  and  that as to those matters he
  believes it to be true. If it is made by a person other than the  party,
  he  must  set forth in the affidavit the grounds of his belief as to all
  matters not stated upon his knowledge and the reason why it is not  made
  by the party.


This isn't the correct statute.  The statute you posted is in regards to verifying a pleading.  Some jurisdictions require the complaint/answer be verified
Quote:
Generally. A verification is a statement
  under oath that the pleading is true to the knowledge of  the  deponent,
  except  as  to matters alleged on information and belief, and that as to
  those matters he believes it to be true

My jurisdiction requires certain pleadings to be verified, but most are not.  I think Florida in the last few months is requiring the Plaintiff to verify their complaints and many still are not complying.   I'm not sure if they were always required to verify their complaints, but it has been an issue lately. 

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Angelo
Sorry guys, maybe this is it.

Rule  3212.  Motion  for summary judgment.   (a) Time; kind of action.
  Any party may move for summary judgment in any action, after  issue  has
  been joined; provided however, that the court may set a date after which
  no  such motion may be made, such date being no earlier than thirty days
  after the filing of the note of issue. If no such date  is  set  by  the
  court,  such  motion shall be made no later than one hundred twenty days
  after the filing of the note of issue, except with  leave  of  court  on
  good cause shown.
    (b)  Supporting  proof; grounds; relief to either party.  A motion for
  summary judgment shall be supported by  affidavit,  by  a  copy  of  the
  pleadings  and by other available proof, such as depositions and written
  admissions. The affidavit shall be by a person having knowledge  of  the
  facts;  it  shall  recite all the material facts; and it shall show that
  there is no defense to the cause of action or that the cause  of  action
  or  defense  has  no merit. The motion shall be granted if, upon all the
  papers and proof submitted, the cause of  action  or  defense  shall  be
  established  sufficiently  to  warrant  the  court as a matter of law in
  directing judgment  in  favor  of  any  party.  Except  as  provided  in
  subdivision  (c)  of  this  rule the motion shall be denied if any party
  shall show facts sufficient to require a trial of any issue of fact.  If
  it  shall  appear that any party other than the moving party is entitled
  to a summary judgment, the court may grant  such  judgment  without  the
  necessity of a cross-motion.
    (c)  Immediate  trial.  If  it appears that the only triable issues of
  fact arising on a motion for summary judgment relate to  the  amount  or
  extent  of  damages,  or  if  the  motion is based on any of the grounds
  enumerated in subdivision (a) or (b) of rule 3211, the court  may,  when
  appropriate for the expeditious disposition of the controversy, order an
  immediate  trial  of  such issues of fact raised by the motion, before a
  referee, before the court, or before the court and a jury, whichever may
  be proper.
    (e) Partial summary  judgment;  severance.  In  a  matrimonial  action
  summary judgment may not be granted in favor of the non-moving party. In
  any  other  action  summary  judgment  may  be granted as to one or more
  causes of action, or part thereof, in favor of any one or more  parties,
  to  the  extent  warranted,  on such terms as may be just. The court may
  also direct:
    1. that the cause of action as to which summary  judgment  is  granted
  shall be severed from any remaining cause of action; or
    2.  that  the  entry of the summary judgment shall be held in abeyance
  pending the determination of any remaining cause of action.
    (f) Facts unavailable to  opposing  party.    Should  it  appear  from
  affidavits submitted in opposition to the motion that facts essential to
  justify  opposition  may  exist but cannot then be stated, the court may
  deny the motion or may order a continuance to permit  affidavits  to  be
  obtained or disclosure to be had and may make such other order as may be
  just.
    (g)  Limitation  of issues of fact for trial.  If a motion for summary
  judgment is denied or is granted in part, the court,  by  examining  the
  papers  before  it and, in the discretion of the court, by interrogating
  counsel, shall, if practicable, ascertain what facts are not in  dispute
  or  are  incontrovertible.  It  shall thereupon make an order specifying
  such facts and they shall be deemed established for all purposes in  the
  action.    The court may make any order as may aid in the disposition of
  the action.
    (h) Standards for summary judgment in certain cases  involving  public
  petition  and participation. A motion for summary judgment, in which the
  moving party has demonstrated that the action,  claim,  cross  claim  or

  counterclaim  subject  to  the  motion  is  an  action  involving public  petition and participation, as defined in paragraph (a)  of  subdivision  one  of  section seventy-six-a of the civil rights law, shall be granted  unless  the party responding to the motion demonstrates that the action,  claim, cross claim or counterclaim has a substantial basis in  fact  and  law  or  is  supported  by  a  substantial  argument  for  an extension,  modification  or  reversal  of  existing  law.  The  court  shall  grant  preference in the hearing of such motion.    (i) Standards for summary judgment in certain cases involving licensed  architects,  engineers, land surveyors or landscape architects. A motion  for summary judgment, in which the moving party  has  demonstrated  that  the  action, claim, cross claim or counterclaim subject to the motion is  an action in which a notice of  claim  must  be  served  on  a  licensed  architect,  engineer,  land  surveyor or landscape architect pursuant to  the provisions of subdivision one of section  two  hundred  fourteen  of  this chapter, shall be granted unless the party responding to the motion  demonstrates  that  a  substantial  basis  in  fact and in law exists to  believe that the performance, conduct or  omission  complained  of  such  licensed  architect,  engineer,  land surveyor or landscape architect or  such firm as set forth in the notice of claim  was  negligent  and  that  such  performance, conduct or omission was a proximate cause of personal  injury, wrongful death or property damage complained of by the  claimant  or is supported by a substantial argument for an extension, modification  or  reversal  of existing law. The court shall grant a preference in the  hearing of such motion.
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