Matt Weidner – Fighting For The American People

Posts Tagged ‘marshall watson’

You know those scenes out of Africa where men are standing around jumping up in down with machetes and sticks in their hands?  Isn’t that anarchy and lawlessness?  Don’t we cringe and shake our heads and have fear for the people who get hacked up and are victims of the mob?

Well this country is even worse.  Theoretically we had a sophisticated law enforcement and legal system that served to protect the masses from the unruly mob.  Theoretically we had a court system that was independent and powerful enough to protect citizens, defend the rule of law, punish wrongdoing and corral behavior so that the mob wouldn’t get out of control. But the mob has been running wild and out of control for decades now in this country.  They have not been stopped.  They have not been slowed down.  In fact, they are becoming more emboldened, more powerful and more vicious.

The wild mob that is running loose in this country today are not carrying machetes or sticks, but make no mistake because they are every bit as evil and violent.  Just think about the break in cases.  The jack booted thugs kicking down the doors of people’s property and throwing them into the street without court order.  Think about the families that get served Writs of Possession by the Sheriff ordering them out of their homes when they’re paying their rent and they have no notice of the proceedings.  Think about the families who had no notice whatsoever that a foreclosure was pending against them because the law firm returned fraudulent returns of service.   For specific examples of all of this, read the Marshall Watson/Florida Attorney General “Assurance of Voluntary Compliance” agreement. WatsonAVC

I’M JUST STARTING MY DAY AND ALREADY I’M SEETHING WITH WHITE HOT ANGER AND RAGE!

THIS IS NOT THE COUNTRY WE ARE SUPPOSED TO BE.  BUT THIS IS THE COUNTRY WE HAVE BECOME.

WE ARE ALL BROKE.  WE HAVE BEEN CHEATED, STOLEN FROM, LIED TO.

AND IT IS ONLY GETTING WORSE.  MUCH, MUCH WORSE.  AND IT’S GETTING WORSE BECAUSE NO ONE IS DOING ANYTHING ABOUT IT.

Oh sure, there are a handful of attorneys out there who are taking great professional risk and suffering persecutions, bar punishment, attacks from judges, personal and professional attacks, lawsuits and threats.  There are brave citizen activists out there who are likewise suffering persecutions, lawsuits, pressure.  These persecutions are all domestic examples of the African machete mob.

For now we have a free press with reporters who are telling the story. But the larger population still fails to grasp the full significance of the descent into chaos, anarchy and lawlessness that is now the legal system that operates in this country and the public still fails to grasp the absolute requirement that they become more engaged in standing up to fight the White Collar Lynch Mob that is running this country and running rampant across the country.

At some point in time our country will come to terms with this lawlessness and anarchy and there will be profound consequences.

The only question is will the revolution be catastrophic, fiery and violent.  Will the bankers and elites and politicians be gathered up and suffer the full fury of the lynch mob or will we as a society figure some civil way to redress the wrongs in a more civil and organized  manner?

Part of the answer comes in the lengthy New York Times Report Here. The problem is because there is ABSOLUTELY NOT ONE SINGLE SHRED OF ANYTHING BEING DONE IN A CIVIL, ORGANIZED AND RATIONAL FORUM, THAT LEADS EVENTUALLY TO A VIGILANTE RESPONSE.  Remember, as so powerfully stated by the Academy Award Winning Movie, “The Inside Job“, not a single Wall Street Criminal has paid any price at all for all the crimes.

Small groups of people are finally starting to protest…and some of them are getting arrested.  That’s a good thing.  We need more arrests.  I say arrest all the protesters.  Lock them up and throw the keys away….at least they’ll have Three Hots and A Cot and a roof over their head. (Until we all realize that the jails are all mortgaged by municipal bonds…the next big financial crisis but that’s another story.)

ABC NEWS

Anywhoo, forget about protesting the bank…where we need to focus our efforts is protesting and protecting the homes that the banks are trying to take.  We’ve all got to wait for the right case, but when the right case and the right person comes along, the message goes out that we all show up at this person’s home after the Writ of Possession is filed.  I’ll send someone to the courthouse to make copies of all the robo signed documents, the non-verified complaint, the post dated assignment, the bogus service of process then we’ll all meet at the person’s home (with their permission of course) and we’re not leaving. PERIOD.  While we’re there, the attorneys will huddle with the documents and we’ll draft the Motion to Vacate Sale and Final Judgment.

Now law enforcement may feel obliged to arrest protesters on arguably bank property, but I’d just love to see Sheriffs arresting people on the private property of a homeowner whose home was sold pursuant to a void or voidable judgment….which makes the Writ of Possession Void or Voidable.   The right person and family will come along.  It’s an elderly person or a struggling family with kids who has good records of attempts to work out a loan modification.  It’s a securitized loan or a Fannie or Freddie Loan.  It’s Deutsche Bank or Indymac.  It’s a Stephan affidavit.  It’s a lawsuit filed by David Stern, or Florida Default, or Marshall Watson, or Shapiro and Fishman.  It’s got service of process charges for Unknown Spouses and Unknown Tenants.  It’s Constructive Service of Process and an Avoidance Affidavit from a disabled or elderly person.  It’s got a Proof of Publication Affidavit that is illegally notarized.   When we find this case, we all know what to do……

SEE YOU AT THE PROTEST!

(And save me a cot at the Concentration Camp…unless I get there first, then I’ll save one  for you.)

Our press, especially here in the Tampa Bay area is doing an excellent job of reporting issues relating to the foreclosure catastrophe, but there are so many more stories that need to be told.  I encourage each of you to make contact with reporters in your area and convince them to do these kind of stories.  Members of the press are always looking for story ideas and they will jump at the chance to tell compelling stories that their readers and viewers will respond to.

1. The Banks and Lenders are Resorting to Kicking Down The Doors of Homes

There is a terrifying practice that is occurring across this state and across this country of banks kicking down the doors of people’s homes, changing locks, taking property and in some cases terrorizing homeowners and residents.  Sometimes this occurs after a foreclosure case has been filed, but often it happens even before a case has been filed.  I have several police reports and have dozens of anecdotal stories that document this practice.  One of the most disturbing components of this national tragedy is the fact that too often local law enforcement does not recognize this as a crime and then they fail to file charges and arrest those who commit these serious crimes. Judges, law enforcement, attorneys, the press, advocates and all citizens must take notice of this disturbing trend that is casting a dark shadow over our communities.  There was a time not so long ago that the Nazis began kicking down doors and violating basic human rights.  The world looked the other way, cowardly hoping that it was not going to happen to them.  This is happening especially to the less fortunate among us.  It’s hard to track down and because law enforcement refuses to take action, it’s a crime that is going unpunished.  What kind of country have we become when powerful institutions are permitted to kick down the doors of our homes and go completely unpunished?

2. Florida’s Top Law Enforcement Officer Is Investigating Most of the Foreclosure Mills

The August 10, 2010 announcement that the Florida Attorney General is investigating three more of the top foreclosure mills in the state is a stunning indictment of what the foreclosure process has become and it should be a wake up call to all citizens and especially judges.  Florida Default Law, Marshall Watson, David J Stern, Shapiro and Fishman– These firms account for probably 80% of all the foreclosure cases filed in the State of Florida.  The fact that these firms are under investigation for serious violations of the law calls into question the entire foreclosure process and it represents a very serious attack on our judicial branch.  If any portion of the allegations are proven true it will have far reaching consequences on our court system for decades to come. Every judge in this state should be asking themselves, “How will I feel about entering this foreclosure judgment against my neighbor if it is later determined that the law firm pursuing the foreclosure is guilty of unfair and deceptive practices?”   What kind of country do we live in if our courts have been compromised and co opted by attorneys and law firms who have exploited weaknesses in our legal process?

3. Foreclosure Rocket Dockets

The Florida Legislature has placed great pressure on our courts to clear the foreclosure docket and our courts are responding in part by implementing so called “Foreclosure Rocket Dockets”.  Given the abuses that the foreclosure mills are being accused of, it is highly inappropriate to implement  a judical process that is a short cut of the existing rules and structure.  If anything we need to slow down the foreclosure process, give our judges far more time and the independence they need to carefully and thoughtfully review each case that passes through their chambers.  And while I respect our senior judges, I am concerned about the Constitutional issues of having non elected officials judge cases that have such profound consequences.  The Florida Supreme Court recently issued a statement that they intend to clear 65% of the foreclosure cases from the docket but I question the judgment in doing this when a) those responsible for these cases are under investigation and b) who will move into the foreclosed homes and c) the beneficiary of these foreclosures are the federal government and foreign interests.  The St. Petersburg Times recently did a story on foreclosure rocket dockets trumpeting the fact that a senior judge was hearing 100 cases a day.  The real story that could be done in every single county across the state is to examine those 100 cases carefully and consider the impact on the system when fraudulent assignments, faked affidavits and fundamental documents are questionable.  These 100 files are prepped up by court staff before they are presented to the judge as “ready to sign” files.  How many files are returned or rejected before those 100 are culled down?

4. Mercenary/Free Lance Foreclosure Mill Attorneys

The practice that has devloped in courtrooms across the state is for mercenary/free lance attorneys who work for all of the foreclosure mills at once to come to court standing ready to argue whatever case happens to be called.  More often than not, they are not carrying with them the entire case file for which they are demanding summary judgment—cases for which some nameless, faceless lawyer has made affirmative representations to the court that no material disputed facts exist.  The mercenary attorney is merely in court with the singular purpose in mind….to put his career on the line swearing to the judge that all the facts are correct and that whatever firm has filed the case has done it correctly and that the Plaintiff named in the lawsuit is entitled to throw the defendant out in the street.  This is problematic on so many levels, primarily because these attorneys have no idea what the facts are in the case and whether the Plaintiff has any right to the foreclosure at all.  This assembly line perversion of a  court system is a disgrace to the practice of law.  What has the practice of law become when attorneys no longer are required to have any knowledge of their cases, much less any contact or real representative relationship with the client?

5. Attorneys From Foreclosure Mills That Appear by Phone For Hearings

Any legal process is predicated upon the attorney being in a position of authority with his client so that the attorney can encourage his client to accept settlement terms that the client may not otherwise be inclined to accept.  At a minimum, the attorney should be prepared to meet with opposing counsel or with the defendant to try and resolve matters prior to hearing and they should at the very least be prepared to speak intelligently with the judge about the case.   In far too many foreclosure cases, the Plaintiff’s attorney is not in a position to communicate with his client and has real clue what is happening with the case.  In other cases, the attorney on the other end of the phone has no idea what is happening with the case.  Telephone hearings in contested cases perpetuate the degradation of the practice of law and should not be tolerated when this privilege is abused.  Just yesterday I sat in court and watched homeowner after homeowner tell the judge that they were in a repayment or that the lender promised they would stop the foreclosure.  The foreclosure mill attorney had no idea and could only suggest that both the pro se defendant and even those who were represented by an attorney should contact the lender directly.  Our rules of civil procedure forbid such contact and as the judge noted, we should not just throw the rules of civil procedure out the window because this is foreclosure court.

6. Sewer Service/Fraudulent Service of Process

The subpoenas issued to the foreclosure mills by the Florida Attorney General seek information about the process servers who are commissioned by the Plaintiff’s attorneys to personally serve Defendants in a foreclosure case with the lawsuit.  In an unreasonably high percentage of foreclosure cases, these process servers swear to the court that although they have made a diligent search, they are not able to locate the defendants in the foreclosure case the plaintiffs then proceed with the case via constructive service or service by publication.  I recently had a $1.5 million dollar foreclosure judgment tossed out and I suspect that there are a great many of foreclosure judgments and cases across this state which are void due to the improper service of process phenomena.  Our courts should carefully examine every single constructive service case and take serious action against the parties who have made improper affirmations about the location of defendants to the court.

7. Fraudulent Assignments of Mortgage/Endorsements/Affidavits

The national  media has begun to cover the emerging story of Plaintiffs and their attorneys who are forging the documents they need to speed through their foreclosure cases. Florida’s Attorney General is specfically investigating how the key evidence the foreclosure mills need to win their cases is being produced.  We know that in many cases, the affidavits and assignments are actually produced by the attorney who is pursuing the case.  This is a staggering violation of long-established court practice and case law which forbids an attorney from producing out of thin air the evidence he needs to win his case.  There is no other area in the law where courts would knowingly allow attorneys to introduce evidence that they have created in order to win their case and yet, because this is “only” foreclosure law courts are allowing the practice to go on unchecked.  In still other cases, the documents are produced on behalf of non-existent or defunct companies by individuals who have no connection with the company purporting to execute the document.  In other widely-reported cases, the documents could not possibly have been executed on the date they were allegedly executed due to the date on the notary stamp.  There has been very little consequences for all of this fraud and misrepresentation to judges, but the long term consequences for our justice system will be profound and wide reaching.

8. The Shadow Plaintiff/Hidden Plaintiff/Fake Plaintiff

Rarely are foreclosures brought in the name of the lender or corporation who actually has any real interest in the mortgage or the property.  Rather, the lawsuit is brought in the name of a servicer or other straw party which conceals the identity of the real party in interest.  There is an alarmingly high rate Ex Parte Motions to Substitute Plaintiff, Assignment of Bid and changing the name of the party that appears on the Certificate of Title after a foreclosure sale.  Determining the real identity of the parties that are taking title to billions of dollars of property is an absolute requirement to understanding the scope and magnitude of this current crisis, but it is being widely ignored all across this state and across this country. The dizzing array of Plaintiff names and entities is impossible for any attorney to wrap his head around.  If you push hard enough in virtually every case, you will find that the Plaintiff named in the foreclosure lawsuit has no real connection to the case. All across the country judges are granting billions of dollars in judgments and property to Plaintiffs yet they have no idea who they are granting judgment to….this is an unprecedented commentary on our court system and on our judges because they are becoming complicit in the crimes that have been committed by Wall Street and which continue to be committed in our courtrooms every day.

9. Foreclosure Cases Stalled and Foreclosure Cases Cancelled

While much attention is focused on cases where a homeowner defends the foreclosure case an even more interesting phenomena exists in the number of cases that stall out or do not proceed when no defense has been raised at all.  While some incorrectly assume that these cases have stalled because some workout has been reached with the lender, I believe there is a very high number of these cases where the Plaintiff has just abandoned the case either because they do not have the evidence they need or because the shadow Plaintiff named does not want to proceed with the case.  Our courts that are facing such pressure from the legislature and elsewhere to clear their dockets should be focusing on these stalled cases and effectuate dismissals of those cases rather than working to throw homeowners out of their homes.

10. Judges Refusing Public Access to Courts

An open and accessible judicial process is a fundamental freedom that is being diminished in this foreclosure crisis.  Reports are rolling in from all over the state that judges are refusing to allow members of the general public to witness public hearings and that judges are refusing to grant hearings to defendants in foreclosure cases that are not represented by an attorney.  Each of the judicial circuits across Florida are establishing ad hoc procedures and some judges are enforcing rules that prohibit parties from accessing their courts and which may prevent members of the general public from viewing these proceedings.  This is another fundamental breakdown in our court system and a serious violation of Constitutional rights that cannot go unchecked.  All court proceedings must be open and accessible to all members of the public and the media and judges need to be reminded of the vital Constitutional role they play in every single case, especially in the foreclosure docket where real rights are at stake.

Sometimes the screams of attorneys and activists who are protesting the conduct of the foreclosure mills seems like voices screaming in the wilderness.  Having said that, the following press release from the Florida Attorney General’s office gives me some hope that raising all these alarms is not totally in vain.

TALLAHASSEE, FL – Attorney General Bill McCollum today announced his office has launched three new investigations into allegations of unfair and deceptive actions by Florida law firms handling foreclosure cases. The Attorney General’s Economic Crimes Division is investigating whether improper documentation may have been created and filed with Florida courts to speed up foreclosure processes, potentially without the knowledge or consent of the homeowners involved.

The new investigations name The Law Offices of Marshall C. Watson, P.A.; Shapiro & Fishman, LLP; and the Law Offices of David J. Stern, P.A. The law firms were hired by loan servicers to begin foreclosure proceedings when consumers were in arrears on their mortgages.

Because many mortgages have been bought and sold by different institutions multiple times, key paperwork involved in the process to obtain foreclosure judgments is often missing. On numerous occasions, allegedly fabricated documents have been presented to the courts in foreclosure actions to obtain final judgments against homeowners. Thousands of final judgments of foreclosure against Florida homeowners may have been the result of the allegedly improper actions of the law firms under investigation.

The Attorney General’s Office is also investigating whether the law firms have created affiliated companies outside the United States where the allegedly false documents are being prepared and then submitted to the law firms for use.

Subpoenas have been served on each of the law firms listed above, and the investigations are ongoing.

Click here to see the Mother Jones story and read the subpoenas.

I’ve frequently posted comments and figures which document what a dismal failure the modification efforts have been….under the HAMP program, the federal government has set aside $75 billion dollars and we’ve gotten fewer then 180,000 modifications.

Having said that, getting a modification may be worse for the consumer in the long run

than not getting one.

Homeowners and advocates need to think long and hard before agreeing to any sort of modification.  What we’re seeing across the board and in many cases is that lenders simply cannot produce the basic paperwork and evidence they need in order to complete a foreclosure.  Rather than try and correct these paper deficiencies in legally permissible ways (although in some cases, there may be no way to correct these fatal flaws), the lenders and their agents are papering the files in fraudulent and impermissible ways that often leads to the case being dismissed.  Most of my residential foreclosure cases are now either stalled at the Motion to Dismiss stage or they have been dismissed and the case not refiled after a Motion to Dismiss based on the issues described above.

Mortgage Modification- How The Wolf Gets in Your Door

Some of the initial modification agreements had clear terms and conditions that were relatively favorable to homeowners.  The agreements I’ve seen lately however, turn the tables and have the homeowner giving away many of the important rights and defenses I can use to defend their case in foreclosure.  Put simply, buried in the modification agreement are terms to the effect that the homeowner agrees and consents that the new document they sign is evidence that the lender has the right to foreclose.   I suppose if the modification were a great deal for the homeowner, it might make sense to sign the agreement, but I have yet to see any modification that was so desirable that it made sense to trade important rights for.

When mediations start in wide scale across Florida, there will be a real push to sign new agreements.  It will be more important than ever for homeowners and advocates to be aware of this issue and not give up any important rights as part of any agreement.

The cat is way out of the bag.  The lenders and banks that brought our country to the verge of collapse with fraud, misrepresentation and lies have now brought these same practices into local courtrooms.  Every day judges who sign foreclosure orders are confronted with legal pleadings that do not conform to the most basic requirements of professional standards, but who really cares about that…the real issue is that because the lenders cannot produce the evidence they need to proceed with their cases, they….produce the evidence they need to proceed with their cases.

I’ve previously posted about affidavit and assignment fraud..it comes in three areas:

1) False Affidavits of Service or False Affidavits That We Could Not Serve the Defendant. (See Sewer Service);

2)False Assignments of Mortgage (MERS assigns this Mortgage to Deutsche Bank who now has the right to foreclose);

3)False Affidavits of Amounts due and owing.

A Subpoena for Every Foreclosure!

Many times these documents are false on their face, but sometimes it takes a little digging to uncover the lies and misrepresentations….that’s where a subpoena comes in.  The following is text of a subpoena I use.  Next is a Motion to Strike Affidavit.  Now there are going to be foreclosures that are proper (such as when original lenders foreclose) but in virtually every other case (especially when a pretender lender is a Plaintiff), when pressed, you’re going to find that the evidence submitted to the court is filled with mistakes lies or outright misrepresentations.  Given what we’re learning about the scope of this problem…subpoenas should be dropped in every case for every fact witness, assignor, assignee and affiant. Please share results of your work with me!  Together we’ll take my beloved courts back.

SUBPOENA DUCES TECUM FOR RECORDS WITH DEPOSITION

STATE OF FLORIDA:

TO:

YOU ARE HEREBY COMMANDED to appear before a person authorized by law to take depositions at the law offices of MATTHEW D. WEIDNER, P.A., 1229 Central Avenue, St. Petersburg, Florida 33705, on MONTH DAY, 2010, for the taking of your deposition in this action and to have with you at the above time and place the following:

1.                  All books, papers, records, documents and other tangible things kept by LITTON LOAN SERVICING, LP concerning the transactions alleged in the complaint against Annabel E. Montgomery.

2.                  Any and all other books, papers, records, documents or tangible things that relate to HSBC BANK, USA, ASSOCIATION AS TRUSTEE FOR THE ACE SECURITIES CORPORATION HOME EQUITY LOAN TRUST, SERIES 2005-AG1, ASSET BACKED PASS-THROUGH CERTIFICATES’ claim against ANNABEL E. MONTGOMERY.

3.               All employment records that exist between Christopher Spradling and any employer who has employed Spradling within the last three years including current employers.

4.            All records that purport to give Christopher Spradling the authority to sign or execute any documents on behalf of any person or entity.

5.         All documents, records, books, evidence or instructions that you reviewed or relied upon in order to prepare the affidavit or assignment executed in this case.

These items will be inspected and may be copied at that time.  You will not be required to surrender the original items.  You have the right to object to the production pursuant to this subpoena at any time before production by giving written notice to the attorney whoose name appears on this subpoena.  You may condition the preparation of the copies upon the payment in advance of the reasonable cost of preparation.

If you fail to: (a) appear as specified, or (b) furnish the records instead of appearing as provided above; or (c) object to this subpoena you may be in contempt of Court. You are subpoenaed by the attorneys whose names appear on this subpoena, and unless excused from this subpoena by the attorney or the Court, you shall respond to this subpoena as directed.

DATED on XXXX X, 2010.

FOR THE COURT

Matthew D. Weidner, P.A.

1229 Central Avenue

St. Petersburg, FL 33705

By: ________________________________

Matthew D. Weidner

FBN: 0185957

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

1. This is an action for foreclosure of real property owned by the Defendant.
2. 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”).
3. 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”).
4. 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]
5. 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.
6. Nowhere in the Affidavit was either Litton or Spradling identified as either the Plaintiff or the Plaintiff’s authorized agent.
7. 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.
8. 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

1. I. Plaintiff Failed to Attach Documents Referred to in the Affidavit
   1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

[2] Id, pgs. 1, 2.

[3] Id.

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

[5] Id, pg. 2.

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

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

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