Matt Weidner – Fighting For The American People

Posts Tagged ‘assignment fraud’

Courts across the country are starting to really beat back the lenders on standing grounds….read on good people.  They’re New York Cases, but the judicial groundswell is bubbling.

Mortgage Foreclosure/Standing   – Plaintiff commenced an action on September 4,
2007  to  foreclose a mortgage  that was assigned  to  it on September 17, 2007 by an
instrument  which  recited  that  its  effective  date  was  July  29,  2007.  The  Supreme   6
Court,  Kings  County,  denied  the  Plaintiff’s  motion  for  an  Order  of  Reference,
without prejudice to file a renewed motion within ninety days accompanied by proof
that  the Plaintiff owned  the mortgage and note prior  to  the commencement of  the
foreclosure.  Otherwise,  the  action  would  be  dismissed  for  lack  of  standing.
According  to  the  Court,  “[w]]here  there  is  no  evidence  that  plaintiff,  prior  to
commencing  the  foreclosure action, was  the holder of  the mortgage and note,  took
physical delivery of the mortgage and note, or was conveyed the mortgage and note
by written  assignment,  an  assignment’s  language  purporting  to  give  it  retroactive
effect prior to the date of the commencement of the action is insufficient to establish
the plaintiff’s  requisite  standing”. Washington Mutual Bank  v. Patterson, decided
December 15, 2008, is reported at 21 Misc. 3d 1145 and 2008 WL 5233195.

Mortgage  Foreclosure/Standing  – The  Supreme Court, Kings County,  denied  the
foreclosing Plaintiff’s motion for summary judgment and for an Order of Reference,
holding that the Plaintiff  lacked standing. It held that the purported assignment of
the note and mortgage by MERS, as nominee for First Franklin, to the Plaintiff was
invalid. It recited that  it was executed by an attorney on behalf of MERS pursuant
to a corporate resolution. However, neither a corporate resolution nor a power-of-
attorney  was  recorded.  The  Court  granted  the  Plaintiff  leave  to  renew  upon
providing  the Court within  sixty days with  (i) a valid assignment of  the mortgage,
(ii)  an  affirmation  that  the  assignor  and  the  assignee  consented  to  simultaneous
representation  in  connection with  the  assignment,  and  (iii)  an  affidavit  explaining
why  the  Plaintiff  purchased  a  nonperforming  loan.  In  addition,  “if  a  power  of
attorney is used for an agent to act as MERS’ assignor of the instant mortgage and
loan  to Deutsche Bank,  the  power  of  attorney  presented  to  the Court must  be  an
original  or  a  copy  certified  by  an  attorney,  pursuant  to  CPLR  Section  2105″
(“Certification by attorney”). Deutsche Bank National Trust Company, as Trustee,
v. Campbell, decided December 16, 2008, is reported at 2008 WL 5220543.

Mortgage  Foreclosure/Standing  –  A  mortgage  foreclosure  commenced  by  New
Century Mortgage Corporation (“New Century”) on March 7, 2007 was dismissed
by  the  Supreme  Court,  Kings  County,  for  lack  of  standing.    On May  11,  2007,
MERS, the record holder of the mortgage (which appears to have been intended to
have  held  the mortgage  as  nominee  for  New  Century),  purportedly  assigned  the
mortgage  to New Century by Assignment of Mortgage which  included  the phrase:
“Date of Transfer: March 5, 2007″. According  to  the Court, “[w]here  there  is no
evidence  that plaintiff, prior  to commencing  the  foreclosure action, was  the holder
of  the mortgage and note,  took physical delivery of  the mortgage and note, or was
conveyed  the mortgage and note by written assignment, an assignment’s  language
purporting to give it retroactive effect prior to the date of the commencement of the
action  is  insufficient  to establish  the plaintiff’s requisite  standing”.  In addition, on
April 30, 2007 MERS had assigned the mortgage to a different lender. New Century
Mortgage Corporation v. Durden, decided February 2, 2009, is reported at 22 Misc.
3d 1118 and at 2009 WL 264134.

Mortgage Foreclosure/Standing –The Defendant in a mortgage foreclosure asserted
that the Plaintiff did not have standing to commence the action on October 11, 2007
since the mortgage being foreclosed and the note it secured were assigned to it by an
assignment dated October 15, 2007 which recited that it was effective on October 8,
2007. The note, endorsed in blank, was delivered to the Plaintiff on October 8, 2007.
According  to  the Supreme Court, Suffolk County, “an  indorsement of a mortgage
note  in blank together with  its delivery by the owner or  its agent to a transferee  is
sufficient  to  transfer  ownership  of  said  note  and  of  a  mortgage  given  to  secure
it….Said  assignment  [on October  15,  2007]  accurately  reflected  that  the  plaintiff
acquired ownership of the note and mortgage on October 8, 2007, by  its receipt of
delivery of the note  indorsed  in blank. The mortgage followed as an  incident to the
transfer of  the note. The plaintiff was  thus  the owner of  the note and mortgage at
the  time  of  the  commencement  of  this  action”.  Deutsche  Bank  National  Trust
Company v. Gillio, dated February 26, 2009,  is reported at 22 Misc.3d 1131 and at
2009 WL 595560.

A few days ago I asked for examples of questionable affidavits and assignments.    Attorneys and activists are often screaming about notary and filing fraud, but quantifying the fraud and presenting it is very difficult.

Attached here is an amazing powerpoint presentation that asks some important questions about affidavits and assignments that are of record across the country.  Now I was only able to attach abou2 20 pages here, but the presentation is more than 161 pages long.  I will be posting more of the slides later, but I encourage everyone to take a close look at the presentation.  It should provoke some important questions for every party involved in foreclosure in any way.

The most important question I ask is how our courts are continuing to allow such improper filing and recording activities to continue?  Keep in mind that all that is required in the vast majority of cases for a foreclosure to proceed is an assignment of mortgage and an affidavit of amounts due and owing….as you will see from the slides on the presentation, these documents are easily (and often are) created in a questionable manner.

Lender Processing Services is a publicly traded company that supports mortgage and lending institutions across the US.  As a publicly traded company, they are required to disclose certain liabilities to the public….the following disclosures come from the LPS form 10k filed with the SEC.  When LPS is acting as an agent for lenders….those lenders will face the same liabilities as their agent…read on….

Litigation

In the ordinary course of business, we are involved in various pending and threatened litigation matters related to our operations, some of which include claims for punitive or exemplary damages. Often, these matters do not include a specific statement as to the dollar amount of damages demanded. Instead, they include a demand in an amount to be proved at trial. For these reasons, it is often not possible to make a meaningful estimate of the amount or range of loss that could result from these matters. Accordingly, we review matters on an ongoing basis and follow the provisions of Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) Topic 450, Contingencies, when making accrual and disclosure decisions. When assessing reasonably possible and probable outcomes, we base our decision on our assessment of the ultimate outcome following all appeals. We intend to vigorously defend all litigation matters that are brought against us, and we do not believe that the ultimate disposition of any of these lawsuits will have a material adverse impact on our financial position or results of operations. Finally, we believe that no actions, other than the matter listed below, depart from customary litigation incidental to our business.

Schneider, Kenneth, et al. vs. Lender Processing Services, Inc., et al.

On February 17, 2010 this putative class action complaint was filed in the United States District Court for the Southern District of Florida. In a single count complaint, the plaintiffs seek to recover unspecified damages for alleged violations of the Fair Debt Collection Practices Act relating to the preparation and use of assignments of mortgage in foreclosure actions. The defendants include two large banks, as well as LPS and our document solutions subsidiary. The complaint essentially alleges that the “industry practice” of creating assignments of mortgages after the actual date on which a loan was transferred from one beneficial owner to another is unlawful. The complaint also challenges the authority of individuals employed by our document solutions subsidiary to execute such assignments as officers of various banks and mortgage companies. Although we do not believe that our conduct falls under the provisions of the Fair Debt Collection Practices Act, at this early stage we are unable to accurately predict the outcome of this matter.

Regulatory Matters

Due to the heavily regulated nature of the mortgage industry, from time to time we receive inquiries and requests for information from various state and federal regulatory agencies, including state insurance departments, attorneys general and other agencies, about various matters relating to our business. These inquiries take various forms, including informal or formal requests, reviews, investigations and subpoenas. We attempt to cooperate with all such inquiries. Recently, during an internal review of the business processes used by our document solutions subsidiary, we identified a business process that caused an error in the notarization of certain documents, some of which were used in foreclosure proceedings in various jurisdictions around the country. The services performed by this subsidiary were offered to a limited number of customers, were unrelated to our core default management services and were immaterial to our financial results. We immediately corrected the business process and began to take remedial actions necessary to cure the defect in an effort to minimize the impact of the error. We subsequently received an inquiry relating to this matter from the Clerk of Court of Fulton County, Georgia, which is the regulatory body responsible for licensing the notaries used by our document solutions subsidiary. In response, we met with the Clerk of Court, along with members of her staff, and reported on our identification of the error and the status of the corrective actions that were underway. We have since completed our remediation efforts with respect to the affected documents.

I’ve been yammering on for months now about how Plaintiff’s law firms are engaging in widespread fraud and misrepresentations as they improperly create and submit documents to courts across the state that purport to support their right to take a homeowner’s home.  This widespread problem has only recently become apparent but attorneys and judges are becoming more aware of the epidemic.  One problem is there have been very few depositions of the robo signers who improperly execute the documents that purport to give a faceless lender the right to proceed in a foreclosure case.  A champion and pioneer of foreclosure defense, Thomas Ice from the Ice Law firm in West Palm cared enough to take a deposition….a great effort for him, but the results are so valuable.  This is totally unsolicited advertising, but if you’re in foreclosure anywhere in Florida and you need an attorney….Put ICE on your short list!

I attach here all 138 pages of a deposition that was taken of Cheryl Sammons.  Ms. Sammons may personally be responsible for more Floridians losing their homes than any other single person in this state.  I say this because, according to her deposition, she has been employed by David Stern’s office for more than 14 years.  David Stern’s office has probably processed more foreclosures in the State of Florida during the 14 year period than any other office.  When Sammons’ depo was taken in 2009, she estimated that Stern’s office employed more than 900 people.  Sammons couldn’t come up with any reliable estimate of how many official documents she signed as an employee, but she estimated that she spent an average of two hours a day signing assignments of mortgage, five days a week and sometimes on the weekend.  Apparently, Stern’s office has several floors and Sammons would just walk from floor to floor where she would be confronted with stacks of documents that she would sign…as you read below, she admits to having no knowledge whatsoever of what she’s signing.

Now keep in mind as you read the complete deposition and the excerpts below that every document she signs is one the document that a judge relies upon to take a home from a consumer.  As the homeowner or consumer is thrown out (based on this document) the order also grants a final judgment for hundreds of thousands and sometimes millions of dollars to the nameless, untraceable entity that Ms. Sammons alone says is entitled to collect this money.  Amazingly, in her more than 14 years of dedicated service creating documents to take people’s homes, she’s only been deposed on this matter once.

The formatting here is bad, but struggle through it and read the full deposition.  When you need support for arguments that lenders and their attorneys are engaging in widespread fraud, print this depo out, along with that of Erica Seck Johnson and share it with your judge….read and weep….

How much time do you spend examining each
11    document before you sign them?
12            A.    Very little.
13            Q.    Do you read the document?
14            A.    No.

Right, because we’re
8            specifically talking about my understanding on
9            these is what I do as far as assignments for MERS,
10            and that’s a different capacity than an affidavit
11            or something.
12          Now, the assignments are reviewed by an
13            attorney before they come to me.  I do not review
14            them for errors.  I simply sign them.

23            Q.    I understand.  So is it fair to say that if
24    it’s an assignment you don’t read it, correct?

25            A.    I only make sure it’s from MERS and that Ihave signing authority for that client.

Q.    And then you sign it?      A.    Yes, sir.

Q.    Why does MERS appoint you as a vice
8    president or assistant secretary as opposed to some other
9    thing like a manager or an authorized agent?
10            A.    I don’t know.
11            Q.    Why would MERS give you a title at all?  In
12    other words, why not just give you the authority to sign
13    a mortgage from MERS?
14                  MR. BAKALAR:  Objection.  Are you asking
15            her to speculate?
16                  MR. ICE:  Just if she knows.
17                  THE WITNESS:  I don’t know.

Q.    Down in the jurat I think it calls you a
19    vice president of Amro, correct?
20            A.    Yes, it does.
21            Q.    Are you either of those things?
22            A.    No, I’m not.
23            Q.    Do you have any explanation for that
24    document?
25            A.    Well, this document is obviously incorrect

Q.    Do you have any involvement in the process
9    of creating the assignment of mortgage before it gets to
10    the table where you walk in and sign it?
11            A.    No, sir.
12            Q.    So you wouldn’t be able to comment on how
13    information gets into the assignment, like who is the
14    assignee or assignor?

Q.    Following the date of October 20th, 2008,
23    there is another date where it says, “But effective as of
24    the 4th day of September, 2008?”
25            A.    Uh-huh

Q.    Who puts that date in there?
4            A.    That is typed in by the processor.
5            Q.    Who tells the processor or how does the
6    processor decide what date to put in there?
7            A.    We train them to put in that date.
8            Q.    In your training, what do you tell them to
9    do?
10            A.    To put in the date that the file was
11    referred to us for foreclosure.

Q.    You don’t actually swear to anything that’s
10    in this assignment, correct?
11            A.    Correct.
12            Q.    All you’re doing is acknowledging that you
13    are executing this as an officer of MERS?
14            A.    Correct.
15            Q.    You have no personal knowledge that
16    anything happened with respect to the transfer of this
17    mortgage on September 4th, 2008?
18            A.    No, sir.
19            Q.    No, sir meaning you don’t have any personal
20    knowledge?
21            A.    No, sir, I don’t have any personal
22    knowledge.

Q.    So your firm, the firm you work for, is

23    pursuing a case on behalf of Deutsche Bank against MERS
24    while, at the same time, you are signing an assignment as
25    a MERS officer to help Deutsche Bank win the case againstMERS, correct?
2            A.    Yes.
3            Q.    Do you see any conflict there?
4                  MR. BAKALAR:  Objection.
5                  THE WITNESS:  No

Q.    Does David J. Stern, P.A. have any
8    agreement in writing from MERS waiving that conflict?
9            A.    I don’t know.
10

There’s no rhyme or reason for
16    what day anybody signs or notarizes for me.  It’s whoever
17    I find.
18

.    That’s your signature?
4            A.    Yes.
5            Q.    And it’s witnessed by Michelle Camacho
6    again?
7            A.    Yes.
8            Q.    And notarized by Michelle Camacho?
9            A.    Yes.
10            Q.    On December 14th of ’07?
11            A.    Yes.
12            Q.    Again, she or someone handwrote in those
13    dates, correct?
14            A.    Yes.
15            Q.    And once again, that would be before her
16    commission was ever issued?
17                  MR. BAKALAR:  Objection.  Are you asking
18            her to testify when someone’s notary commission
19            was issued?
20                  MR. ICE:  No.  The question is the date
21            that’s on this assignment predates her commission
22            by a little under three months.
23

Q.    Do you see that date?
14            A.    Yes.
15            Q.    So, once again, the date of the assignment
16    is prior to the date of filing, correct?
17            A.    Yes.

Do I have to say the same
3            thing on every single assignment?  I’m just
4            asking.  Because I can tell you I don’t remember.
5            I sign a lot.  You’re going to ask me if I think
6            it was backdated.  I’m going to tell you no.  I’m
7            going to tell you I don’t know what the mistake
8            is.  I don’t know if I want to answer the same
9            question every single time.
10                  MS. EVERTZ:  It seems redundant.  Say how
11            many are there.  Same answer as to all.
12                  THE WITNESS:  Right.  I don’t have an
13            explanation for you other than mistake

:               If you will stipulate that all 21
18            of these are executed with a date that is before
19            the notary’s commission was ever issued –

20                 If you just look at the document itself,
21    you will see that the expiration date is more than four
22    years after the execution date.
23            A.    Okay.
24            Q.    Which means that unless they are capable of
25    time travel, they couldn’t have used that stamp that wasn’t going to be issued until after this document was
2    executed?
3            A.    Okay.
4            Q.    Will you stipulate that that’s the case in
5    all 21 of these assignments?

(With a lot of detail, the attorneys for the witness stipulate that many of the 21 documents were executed before the notary’s commission was executed.)

Q.    Would you say because they are all recorded
on the same day and all notarized and witnessed by the
same two people that it’s likely that they were all
executed on the same day?
A.    It’s a possibility.
Q.    Yet the execution dates vary for a whole
year from February of ’07 all the way to February of ’08?
A.    Yes.
Q.    Do you have any explanation for that?
A.    No, sir, I don’t.

Q.    Now, this problem of notarizing with stamps
that haven’t been issued yet, that’s been brought to your
attention before this deposition, correct?
A.    Correct.

Q.    But as far as the others, you are aware
11    that this issue had come up about assignments executed
12    with stamps that didn’t exist yet?
13            A.    Correct.
14            Q.    Are all of these notaries still notarizing
15    documents here at David J. Stern, P.A?
16            A.    Yes.
17            Q.    Has the firm done anything to discipline
18    any of these notaries?
19            A.    Discipline, no.
20            Q.    Reprimand?
21            A.    I would not use the word reprimand, no.

Q.    Were you aware of an occasion when David
12    Stern was reprimanded by the Florida Bar for professional
13    misconduct regarding potentially misleading affidavits?
14            A.    Yes.
15            Q.    What is your knowledge about that?
16            A.    My knowledge was that there was a case and
17    there was a Florida Bar reprimand.  That’s all I know.

Courts across the country have been granting banks foreclosure when they have scant evidence or documentation to support the granting of foreclosure.  Let’s be clear what’s happening here.  When a judge grants a Plaintiff foreclosure, that’s a claim that potentially puts hundreds of thousands of dollars in that Plaintff’s pocket.  Not so long ago, it was relatively clear that the Plaintiff was the party entitled to collect the money–their name was on the loan docs and the borrower made their payment to that lender over the course of the loan.  It was also relatively clear how much the Plaintiff was owed.  The Plaintiff kept the books and they largely did a fair job in keeping and presenting those records to the court in order to get their judgment

An On-Going Epidemic of Affidavit, Assignment and Evidence Fraud on The Court.

In response to the massive wave of foreclosure business, Plaintiffs and lenders have started churning out completely improper work product that does not fulfill the basis requirements of competent legal practice.  They are also churning out work product that is fraudulent and completely without any factual basis…i.e.

• If the Plaintff’s firms need an assignment of mortgage to give their Plaintiff the right to foreclose, they don’t bother getting it from the party that owns the mortgage, they simply create a fraudulent document and file it with the court;
• If the Plaintiff’s firm needs an affidavit to support how much they claim to be owed by the Defendant they do not get it from a source that is competent to provide that testimony and they do not attach any documents to support the amount claimed due as required by law, they merely have a nameless face sign an affidavit that says any old thing and submit that to the court;
• If the Plaintiff’s firm needs to get formal service on a Defendant, sometimes they don’t wait around for the process server to actually track that person down, they just lie say they attempted to get service on the person and file that lie to the court. (And when the process service company is owned by the Plaintiff’s firm, they’ll charge exorbitant fees for doing so.)

An Unfair Burden on The Judiciary

Anywhoo, the point is we’re all aware of all this conduct….and so much more.  Unfortunately the judiciary is just bursting at the seams with so many new cases that they just cannot keep up.  Their staff are just overwhelmed…the judges cannot possibly be expected to render the best legal work they expect of themselves, but they’re trapped in an uncomfortable and untenable situation.  In partial response, the courts are adopting new procedures that will be very damaging in the long run….like summarily passing cases through without much actual review or consideration.

The Result of The Unfair Burden on the Judiciary- Unsupported Judicial Opinions

The net result of the pressure placed on the judiciary is bad orders and bad title work and opinions coming out.  The Second DCA just released their BAC Funding v. US Bank opinion.  That opinion shuts the door on many of the bad processes and procedures that are now plaguing courts in this circuit and others.  The reply brief that was submitted in that case illustrates what harm can come when Orders of the court are issued without proper hearing.  In this case a Summary Judgment of Foreclosure was entered without a hearing.  Although there were many problems with the file from the outset and both sets of attorneys new this, the trial court had instituted a process of not bothering to hold hearings on these cases.  The results are the trial court entered judgment when they should not have…and now we’ve got a wonderful appeal.

The entire BAC Funding Brief can be found here it is a clear and concise illustration of what goes wrong when courts engage in summary procedures without considering important facts. I’ve previously complained about ex-parte Motion to Dismiss Denial practice because I’m concerned that our courts will face much greater problems going forward if they respond to the overwhelming increase in case loads with summarily dismissing cases.  I have profound respect for our courts and want to help them work though this crisis without causing greater problems down the road.

Virtually every Motion for Summary Judgment in foreclosure cases is predicated on an “Affidavit of Amounts Due and Owing” introduced by the Plaintiff.  I’ve always been bothered by these affidavits because it just doesn’t seem right that one flimsy form document signed by a mindless “Robo Signer” should be all that is required to entitle any old Plaintiff to kick my neighbor out of her home, then chase her to the ends of the earth for the money claimed due in this one flimsy piece of paper. Some brilliant legal research by my colleague Michael Fuino (3L at Stetson Law) confirms that these affidavits are flawed and should not be permitted to be relied upon to grant summary judgment.

Perry Mason Goes to Foreclosure Court

The analysis and case law below provides all the legal support necessary to make an intelligent legal argument, but you can begin the challenge to the affidavit with a Perry Mason, “Well golly your honor, I’m afraid I can’t figger this here affidavit out at all….”Lookiee here it just says…Defendant owes Plaintiff all this here money.  Now exactly who is it these big shot banker boys and fancy lawyers want you to give all this money to?  The Plaintiff that first appeared in the case before they made their Motion to Substitute Party Plaintiff?  One of them companies mish mashed up there in that Plaintiff that I can’t even figger out who they are or where they are, Duetsche Bank?  The Ixis Trust, an FSB?

And now the real kicker.  “Your honor, by my count we got us here six Defendants.  There’s 1)Bob Smith, his wife 2)Mary Smith, some company called 3)MERS {and what is this MERS thing your honor? I mean how did they get here} 4. They Shady Acres Homeowner’s Association;  5) The City of Mayberry and; 6) Visa Credit Card Company.  Now I know they probably mean to tell you that Bob and Mary Smith are “the Defendant” that owes them the money, but the problem is “Mary Smith” don’t owe no one any money….lookee here, she didn’t sign any Note so they can’t claim she’s “the Defendant” that owes the money.

The point is I’ve never seen an affidavit that clearly identifies who they allege is obligated to pay the money claimed in the affidavit.  That’s a basic flaw that I’m never gonna let slide again.  And now to the legal argument.

Plaintiff Failed to Attach Documents Referred to in the Affidavit-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.)

In most affidavits, the affiant affirmatively states that he is “familiar with the books of account and have examined all books, records, and documents kept by SERVICER FOR PLAINTIFF concerning the transactions alleged in the Complaint.” Furthermore, the affiant avers that the “Plaintiff or its assigns, is owed…$408,809.30.” Nevertheless, the affiants fail to attach any of the books, records or documents referred to in the Affidavit.  In addition, the affiants do 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 the affiants 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.” Emphasis added.  Thus, the affiant 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, the affiants aver to records which they did not submit nor could they testify for the authenticity of just as the affiant in Zoda did.

The affiant’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 them incompetent to testify to the matters stated therein as the Second District in Zoda held.  Therefore, the Affidavit should be struck in whole.

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 discussed, the affiants refer to books, records, and documents kept by SERVICER which allegedly concerned the transaction referred to in the Complaint against the Defendant.  Nevertheless, as previously demonstrated, Affiant 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.

Affidavit Was Not Based Upon Affiant’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 affiant has absolutely no personal knowledge of the facts stated therein.  As an employee of Servicer, which purports to be the servicer of the loan, he has no knowledge of the underlying transaction between the Plaintiff and the Defendant.  Neither affiant nor servicer: (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 Servicer performs for the Plaintiff, save for one line which states that Servicer “is responsible for the collection of this loan transaction and pursuit of any delinquency in payments.”At best, servicer acted as a middleman of sorts, whose primary function was to transfer of funds between the various assignees of the underlying Mortgage and Note.  Servicer is not the named Plaintiff in this case, nor does the Affidavit aver that either affiant or servicer is the agent of the Plaintiff.

Because affiant 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 affiants’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 affiant in the Affidavit (which, of course, were not attached) were kept by affiant, who cannot be a person with knowledge as affiant does not have any personal knowledge of underlying transaction between the Plaintiff and the Defendant.  Finally, affiant, as the source of this information, shows a lack of trustworthiness because affiant failed to attach the books, records, and documents to the Affidavit and because neither affiant nor servicer have knowledge of the underlying transaction between the Plaintiff and the Defendant.

Because affiant’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.

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, affiant 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 affiant 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.” Nowhere in the Affidavit does affiant state that the Plaintiff is entitled to enforce the Note and Mortgage against the Defendant nor does affiant 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, affiant has not adequately supported his two legal conclusions.