THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT

IN AND FOR PALM BEACH COUNTY, FLORIDA

Case: 502010CA002938XXXXMB

Division: AW

AMERICAN HOME MORTGAGE SERVICES, INC

Plaintiff,
vs.

ZOILA J. AVILA AND PEDRO FALCONES

Defendants.
_________________________________________/

AMENDED MOTION TO STRIKE THE AFFIDAVIT OF INDEBTEDNESS

IN SUPPORT OF MOTION FOR FINAL SUMMARY JUDGMENT
OF CAROLYN WHITE

Defendants ZOILA J. AVILA and PEDRO FALCONES (“Defendant”) moves to strike

the Affidavit as To Amounts Due and Owing of CAROLYN WHITE ("Affiant"), and as grounds

thereof respectfully states:

Plaintiff has, in support of its motion for final summary judgment, filed the Affidavit of

CAROLYN WHITE (“Affidavit”). The Affidavit attests to the contents of books and records

kept by AMERICAN HOME MORTGAGE SERVICING, INC. regarding the Defendants

account, the originals of which have not been provided, and no statutory excuse has been

proffered as to why the originals are not available. The Affidavit contains no statement that

falsely making such a certification or declaration would subject Affiant to criminal penalties

under the laws of Florida.

 Affiant does not represent that she is Records Custodian for Plaintiff, nor does she allege

the basis of her knowledge regarding the loan at issue. Further, Affiant does not represent the

basis of her "actual and personal knowledge" of the facts contained in her affidavit.

In Florida, a statement made by a declarant other than one made while testifying at a

hearing offered to prove the truth of the matter asserted is hearsay, and except as provided by

statute, hearsay evidence is inadmissible. F.S. §§ 90.801(1)(c) and 90.802 (2009). Furthermore,

hearsay testimony concerning the contents of business records is not admissible unless original

business records have been introduced. F.S. § 90.952(2009).

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 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).

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.); Wms v. Henderson, 779

So. 2d 450 (Fla. 2nd DCA 2000); First Mortg Investors, v. Blvd. Nat. Bank of Miami, 327 So. 2d

830 (Fla. 3rd DCA 1976).

Further, the affidavit of CAROLYN WHITE does not comport with Fla. R. Civ. P.

1.510(e) in that it does not attach the requisite sworn or certified copies of all papers or parts

referred to in the affidavit.

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.)

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’s 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).

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’s acknowledged debt in writing where Plaintiff

failed to attach letters from Defendant’s); 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 conclusion, based on the abundance of case law sited above, the Affidavit of

CAROLYN WHITE must be stricken as it is not based on personal knowledge; sets for 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; sets forth hearsay or opinion

testimony that would be inadmissible at trial; sets forth legal conclusions and opinion testimony;

and, fails to attach the records upon which her affidavit is based, even though those records were
created by other people with personal knowledge, not her. Clearly, the affidavit shows that the

Affiant, CAROLYN WHITE, is not competent to testify to the matters stated in the affidavit.

CONCLUSION

The purpose of a summary judgment is to avoid the expense and delay of trial where no

dispute exists concerning the material facts. National Airlines v. Florida Equipment Company of

Miami, 71 So.2d 741 (Fla. 1954). Irrefutably, in summary judgment appeals every attempt will

be made by the appellate court to reverse the summary judgment. The record is reviewed in the

light most favorable toward the party against whom the summary judgment was entered.

Robinson v. City of Miami, 177 So.2d 718 (Fla. 3d DCA 1965).

Thomas Jefferson once warned that “banking establishments are more dangerous than

standing armies”. If the laws and rules of this state be any particular fashion wrong, Defendant’s

urges this Court to let them be corrected by amendment in the way which the Constitution

designates but let there be no change by usurpation.

Based on the foregoing, the Defendants respectfully requests that the Plaintiff’s Motion

for Summary Judgment be denied and the Affidavit of CAROLYN WHITE be stricken.

1Dated: October 6, 2010

MELVA ROZIER, P.A

801 North Point Parkway, Suite 6
West Palm Beach, FL 33407
(561)840-1344 Telephone
(561)840-1535 Fax
E-mail: Melvarozier@aol.com

By: ________________________________________
MELVA HARRIS-ROZIER, Attorney at Law
Counsel for Defendant
Zoila J. Avila and Pedro Falcones
Florida Bar Number: 0901121
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and accurate copy of the above has been furnished by

facsimile and U.S. mail on October 6, 2010 to: Ron G. Rice, Jr, Esq. Kahane & Associates, P.A.,

8201 Peters Road, Ste. 3000, Plantation, FL 33324; Fax (954) 382-5380.

By: ________________________________________
Melva Harris-Rozier