IN THE CIRCUIT COURT, 15th JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO: 2009-CA-037188

BANKUNITED, ASSIGNEE OF THE FDIC AS RECEIVER FOR BANKUNITED FSB Plaintiff v. ANDREW SCOTT REALTY CORP., et al, Defendant ___________________________________/ MOTION TO STRIKE AFFIDAVIT OF AMOUNTS DUE AND OWING OF LORI SILER COMES NOW DEFENDANT, ANDREW SCOTT REALTY CORP., by and through the undersigned attorney, and moves this Court to strike the Plaintiff's Affidavit of Amounts Indebtedness executed by Lori Siler for the reasons set forth below: 1. In support of its Motion for Summary Judgment, Plaintiff filed the Affidavit of

Indebtedness (Affidavit) executed by Lori Siler (Affiant). 2. Lori Siler is a Foreclosure Specialist in the Default Administration Department at

BankUnited, assignee of the FDIC, as receiver for BankUnited FSB. 3. 4. The original lender of the Defendants loan was BankUnited FSB.i Affiant is not competent to testify to the matters stated within her Affidavit. See

Fla.R.Civ.P. 1.510; Elser v. Law Offices of James M. Russ. P.A., 679 So. 2D 309 (Fla. 5th DCA 1996). (An affidavit must clearly show the affiant is competent to testify to the matters stated in the affidavit.) 5. Fla. R. Civ. Pro 1.510(c) sets out the formal requirements that affidavits must

meet. The rule reads, in part:

[s]upporting 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. 6. Thus, when a supporting affidavit does not comply with the requirements that it:

(1) be made on personal knowledge; (2) set forth such facts as would be admissible in evidence; and (3) show affirmatively that the affiant is competent to testify to the matters stated therein, it is legally insufficient. Plaintiffs Affidavit is invalid on its face as will be further set out below. 7. Jessibel Mojicas (Affiant) personal knowledge is indisputably based on

multiple levels of hearsay. Affiant alleges that she is familiar with the business records maintained by the servicer. That these records are made at or near the time by, or from information provided by, persons with knowledge of the activity and transactions reflected in such records. Affiant states that she acquired personal knowledge of the matters stated

herein by examining those business records, a copy of which are attached to her Affidavit. Significantly Affiant does not claim that she is the person that made the entries into the computer. She does not state what her job or duties are. A corporate officers 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 affidavit clearly belies the fact that someone or something else opens the mail and enters data into the computer system, and relies upon someone else's personal knowledge for her statements, for example in Paragraph 3 of the Affidavit, Affiant states Plaintiff is owed the following sums of money the amounts are taken from an Individual Message attached to the Affidavit which is from Echeverria Processer on behalf of Wells Fargo Home Mortgage

to the Foreclosure Processor at Florida Default Law Group. Notably, the message is from an employee of Wells Fargo Home Mortgage AND NOT Wells Fargo Bank NA (the successor for Wells Fargo Home Mortgage) for which the Affiant is employed as Vice President of Loan Documentation. In point of fact all the attachments demonstrate that they were created by Wells Fargo Home Mortgage and therefore indisputably the Affiant cannot have any personal knowledge regarding same. Indeed she admits the matters are recorded by persons with personal knowledge. Therefore, the affidavit lacks the personal knowledge required, in spite of its assertion to the contrary and is nothing more than hearsay upon hearsay. 8. 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)). 9. An affiant fails to satisfy this competency requirement where affiant merely

states, without more, that affiant has "personal knowledge". Montejo Invests. N.V. v. Green Cos., Inc. of Fla., 471 So. 2D 158 (Fla. 3rd DCA 1985) (Where affiant merely stated his title, that he was familiar with the facts stated in the complaint, and that to the best of his knowledge and belief the facts were true and accurate, affidavit was legally insufficient as it failed to show affirmatively that affiant was competent to testify to matters set forth therein, was not based on personal knowledge, and did not set forth facts as would be admissible in evidence.); Nour v. All State Pipe Supply Co., 487 So. 2D 1204 (Fla. 1st DCA 1986)(Addition of phrase that the affiant is "personally knowledgeable" with respect to the allegations of the complaint adds nothing, since it is not a statement of fact, but is itself a mere conclusion or opinion of the affiant"). An affiant should establish the factual basis for affiant's competence

(i.e. age, bases of affiant's personal knowledge of the relevant matters at issue in the case, etc.). The burden is on the movant to establish the absence of any genuine issue of fact and the entitlement to judgment as a matter of law. 10. An affidavit must be based on an affiant's personal knowledge to prevent the

trial court from relying on hearsay as the basis for its decision and to ensure there is an admissible evidentiary basis for the claim, or affiant's position on, rather than mere belief or conjecture. Florida Dept. of Fin. Servs. v. Associated Indus. Ins. Co., Inc., 868 So.2d 600 (Fla. 1st DCA 2004). Accordingly, an affiant should state in detail the facts showing affiant has personal knowledge. Id., Hoyt v. St. Lucie County, Bad. Of County Comm'rs, 705 So.2d 119 (Fla. 4th DCA 1998) (affidavit legally insufficient where it fails to reflect facts demonstrating how affiant would possess personal knowledge of the matters at issue in case); Carter v. Cessna Fin. Corp., 498 So.2d 1319 (Fla. 4th DCA 1986) (affidavit legally insufficient where affiant failed to set out a factual basis to support claim of personal knowledge of matter at issue in case and failed to make assertions based on personal knowledge). 11. An affidavit which shows conclusively on its face that the affiant could not

possess personal knowledge of the matters stated therein likewise is legally deficient. Avatar Props., Inc. v. Boney, 494 So. 2D 289 (Fla. 2nd DCA 1986) (Affidavit legally insufficient where affiant clearly incapable of having personal knowledge of facts at issue in case); Thompson v. Citizens Nat'l Bank of Leesburg, 433 So. 2D 32 (Fla. 5th DCA 1983) (Affidavit filed by liquidator of FDIC in case involving note obtained from FDIC's predecessor in interest was legally insufficient where affiant's allegations as to the history of the loan transaction and the relevant business records could not have been made on personal knowledge.); Williams v. Henderson, 779 So. 2D 450 (Fla. 2nd DCA 2000); First Mortgage Investors, v. Blvd. Nat. Bank of Miami, 327 So. 2D 830 (Fla. 3rd DCA 1976).

12.

Affidavits should set forth facts which would be admissible at trial. Allegations in

an affidavit that set forth incompetent and inadmissible matters, such as hearsay or opinion testimony, that would be inadmissible at trial, should be disregarded by the trial court. Warden v. Chase Manhattan Bank, USA, N.A. 872 So. 2D 432 (Fla. 4th DCA 2004); Ham v. Heintzelman's Ford, Inc., 256 So. 2D 264 (Fla. 4th DCA 1972) (affidavit predicated on inadmissible hearsay does not comply with the summary judgment rule and cannot be utilized either in support of or in opposition to summary judgment.) 13. Affidavits may not be based on allegations of ultimate facts. Dean v. Gold Coast

Theaters, Inc., 156 So. 2D 546 (Fla. 2D DCA 1963). Nor can an Affidavit be based on conclusions of law. Hurricane Boats, Inc. v. Certified Indus. Fabricators, Inc., 246 So. 2D 174 (Fla. 3rd DCA 1974); Deerfield Beach Bank v. Nager, 140 So. 2D 120 (Fla. 2D DCA 1962). See also, Jones Constr. Co. of Central Florida, Inc. v. Florida Workers' Comp. JUA, Inc., 793 So. 2d 978, 979-80 (Fla. 2nd DCA 2001) (affidavit that states only that affiant has personal knowledge of the facts, that the allegations in the complaint are true and correct, and that defendant owes plaintiff $3,671,312 is legally insufficient as affidavit failed to set forth any evidentiary facts that would be admissible in evidence). Moreover an affidavit that amounts to nothing more than a statement by affiant that the allegations in the complaint are true similarly is insufficient. See, Nour v. All State Pipe Supply Co., 487 So. 2D 1204 (Fla. 1st DCA 1986). 14. Finally, when a document supplies the basis for an affiant's personal knowledge,

the affiant must attach the document to the affidavit. CSX Transp., Inc. v. Pasco County, 660 So. 2D 757 (Fla. 2nd DCA 1995) (court reversed summary judgment where witness based statements on reports, but failed to attach reports to affidavit); Zoda v. Hedden, 596 So. 2D 1225 (Fla.2nd DCA 1992) (attorney not competent to testify in affidavit as to property transactions reflected in settlements, deeds, and judgments contained in public records, since attorney was not custodian of public records, and consequently, was unable to authenticate

documents referred to in his affidavit); Topping v. Hotel George V, 268 So. 2D 388 (Fla. 2nd DCA 1972) (attorney's affidavit stating that he was familiar with client's records and the records reflect certain information constituted inadmissible hearsay); Rowland v. Wolf, 192 So. 2D 47, 49 (Fla. 3rd DCA 1966) (court rejected Plaintiff's affidavit that defendant acknowledged debt in writing where Plaintiff failed to attach letters from defendant); Crosby v. Paxon Elec. Co., 534 So. 2D 787 (Fla. 1st DCA 1988), appeal after remand, 576 So. 2D 906 (Fla. 1st DCA 1991). In this case, none of the documents attached to the Complaint support the allegations contained therein. 15. Based on the abundance of case law sited above, the Affidavit of JESSIBEL

MOJICA must be stricken as it is not based on personal knowledge; sets forth no facts showing she has personal knowledge; sets forth facts and/or conclusion where she clearly was incapable of having personal knowledge of facts at issue in case, i.e., she has knowledge of the business records made of matters recorded by persons with personal knowledge and information transmitted by persons with personal knowledge (how does Affiant know what knowledge the person imputing the information has or what personal knowledge the individual transmitting information had?); sets forth hearsay or opinion testimony that would be inadmissible at trial; sets forth legal conclusions and opinion testimony; and attaches business records created by others which are unauthenticated and do not in and of themselves support her statements in her Affidavit. Clearly, Jessibel Mojica cannot state that she has personal knowledge of the matters contained in Wells Fargo Home Mortgage records because admittedly Wells Fargo Bank NA is the successor by merger and the note is owed by another entity. Notably, all the information on the affidavit is taken from Wells Fargo Home Mortgage business records, records she readily admits were created by others. 16. Moreover, in order to meet the usual business practices element for a business

records foundation, the witness must be shown to be either in charge of the activity

constituting the usual business practice or is well enough acquainted with the activity to give the testimony. Alexander v. Allstate Ins. Co., 388 So.2d 592, 593 (Fla. 5th DCA, 1980); Mastan Co., Inc. v. American Custom Homes, Inc., 214 So.2d 103 (Fla. 2d DCA 1968); Holt v. Grimes, 261 So.2d 528 (Fla. 3d DCA 1972). 17. The custodian or other qualified witness testifying as to the records kept by a

particular business must be acting within the scope of that business. Johnson v. DHRS, 546 So.2d 741, 743. (Fla. 1st DCA 1989). There must also be some proof that practice was followed in the particular circumstance. Alexander at 593; citing Bernstein v. Liberty Mutual Insurance Company, 294 So.2d 63 (Fla. 3d DCA 1974). 18. In this case, the Affiant does not state that the records in question are kept

under her supervision and control or that she was in charge of the activity or well enough acquainted with the activity of Wells Fargo Home Loans. Indeed, she says she is familiar with business records maintained by Wells Fargo Bank NA for the purpose of servicing mortgage loans. 19. Indisputably, the affidavit demonstrates that Jessibel Mojica is not competent to

testify to the matters stated in her affidavit. The Affiant cannot state that she has personal knowledge of the matters contained in Wells Fargo Home Loanss business records, nor that the bank records were complete or correct, nor where they kept under her supervision and control. See 90.803(6), Fla.Stat. (1981); Thompson v. Citizens Natl Bank of Leesburg, 433 So.2d 32, 33 (Fla. 5th DCA 1983). WHEREFORE, the Defendant, ANDREW SCOTT REALTY CORP., respectfully request an order from this court striking the Affidavit of Amounts Due and Owing executed by Lori Siler and for such other relief as the court deems fit.

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was forwarded via U.S. Mail to Ron G. Rice, Jr., KAHANE & ASSOCIATIONS PA, 8201 Peters Road, Ste: 3000, Plantation, Fl 33324 and John R. Eubanks, Jr., Esq., BRETON, LYNCH, EUBANKS, ET AL., 1209 No. Olive Avenue, West Palm Beach, Florida 33401 on this October 6, 2011. CIVIL JUSTICE ADVOCATES, PL Attorney for Defendant(s) 3601 W. Commercial Blvd Suite 18 Fort Lauderdale, FL 33309 Tel: (954) 677-8888 Fax: (954) 677-8881 By: ____________________________ Joann M. Hennessey, Esq. Florida Bar No.: 192465 Adam I. Skolnik, Esq. Florida Bar No.: 728081 Kunal A. Mirchandani, Esq. Florida Bar No. 86161 CC: OFFICIAL REPORTING SERVICES FAX;954-467-8214
*Note: Several attempt was made to coordinate depositions opposing counsel.

EXHIBIT A
1. All books, papers, records, documents and other tangible things kept by Plaintiff concerning the transactions alleged in the complaint against Defendant. 2. All other books, papers, records, documents or tangible things that supports Plaintiffs claim that Defendant requested or otherwise solicited a credit card from Plaintiff. 3. All documents, records, books, evidence or instructions that Clair Dorias and Christopher Shook reviewed or relied upon in order to prepare the affidavit of debt and affidavit of indebtedness, respectively executed in this case in support of Plaintiffs claims. THESE ITEMS WILL BE INSPECTED AND MAY BE COPIED AT THE TIME OF THE DEPOSITION. DEPONENTS WILL NOT BE REQUIRED TO SURRENDER THE ORIGINAL ITEMS. DEPONENTS HAVE THE RIGHT TO OBJECT TO THE PRODUCTION BY GIVING WRITTEN NOTICE TO THE ATTORNEY WHOSE NAME APPEARS ON THIS NOTICE. DEPONENTS MAY CONDITION THE PREPARATION OF THE COPIES UPON THE PAYMENT IN ADVANCE OF A REASONABLE COST OF PREPARATION. CERTIFICATE OF SERVICE Carol C. Asbury, Esquire Attorney for Defendant 3601 W, Commercial Blvd., Suite 18 Ft. Lauderdale, FL 33309 By:______________________________ Carol C. Asbury, Esq. Florida Bar: 393665

BankUnited FSB went into receivership on on June 25, 2009 the FDIC publicly released for the first time the formerly sealed bid forms submitted on May 19, 2009 by all three bidders in the auction for BankUnited Financial Corp a/k/a BankUnited FSB.