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Motion to Strike Affidavit
IN THE CIRCUIT COURT OF THE
20TH JUDICIAL CIRCUIT IN AND
FOR COLLIER COUNTY, FLORIDA
DEUTSHCE BANK NATIONAL TRUST CASE NO: 07-xxxx-CA
COMPANY, AS TRUSTEE FOR MORGAN
STANLEY ABS CAPITALI, INC., TRUST
2006-HE6, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-HE6,
Plaintiff,
vs.
D.O.
et. al.,
Defendant.
__________________________________/
DEFENDANTS’, De.O. and De.O’S, MOTION TO STRIKE AFFIDAVIT OF MOHIT PATHAN FILED BY PLAINTIFF IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT
The Defendants, D.O., by and through undersigned counsel, file this Motion to Strike Affidavit of Mohit Pathan filed by Plaintiff in Support of its Motion for Summary Judgment as follows:
1. Plaintiff attached as Exhibit “A” to its Motion for Summary Judgment the affidavit of Mohit Pathan, Vice President of Countrywide Home Loan Servicing, LP. The affidavit appears to be a form affidavit.
2. Rule 1.510(e), Fla. R. Civ. P., requires that affidavits supporting motions for summary judgment “set forth such facts as would be admissible in evidence.” Although the affidavit contains a boiler-plate allegation that it is made on personal knowledge (paragraph 2), paragraph 3 contradicts this by stating that the affiant has either direct access or has been provided with the business records of the Plaintiff concerning the note and security agreement as well as other loan documents. Therefore, the affiant’s “personal knowledge” is actually based upon information read by the affiant.
3. The affidavit, therefore, contains double hearsay. Even if the contents of the affidavit were sufficient to cure the hearsay nature of the records themselves, the business records have not been attached. Instead, the affiant is testifying about what the records say without attaching them, which adds a second of layer of hearsay that the affidavit does not cure.
4. As a result, the affidavit does not constitute proper summary judgment evidence and should be stricken or ignored by the court in considering the motion for summary judgment.
WHEREFORE Defendants, D.O., respectfully request that this court enter an order striking the affidavit of Mohit Pathan filed by the Plaintiff in support of Plaintiff’s Motion for Summary Judgment.
CERTIFICATE OF SERVICE
IT IS HEREBY CERTIFIED that on March 26, 2010, a true and correct copy of the foregoing was faxed, emailed and mailed to: Michael J. Alterman, Esq., Law Office of David J. Stern, P.A., 900 S. Pine Island Road, Suite 400, Plantation, FL 33324-3920 [Attorneys for Plaintiff]; David E. Leigh, Esq., 5150 Tamiami Trail, North, Suite 501, Naples, FL 34103 [Attorney for Sherwood V., Inc.] and David Brian Levin, Esq., Adorno & Yoss LLP, 2525 Ponce de Leon Blvd Ste 400, Miami, Florida 33134-6044.
SACKRIN & TOLCHINSKY
Attorney for Defendants
2100 East Hallandale Beach Blvd./Suite 200
Hallandale Beach, FL 33009
Telephone: (954) 455-0800
Facsimile: (954) 455-9649
By__________________________________________
ALAN D. SACKRIN, ESQ. Florida Bar No. 349070
LARRY TOLCHINSKY, ESQ. Florida Bar No 021997
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This is a sample document related to a specific set of facts and circumstances and should not be used or relied upon if any foreclosure, deficiency judgment, short sale or any other real estate matter. We recommend and urge you to consult with an experienced lawyer for professional advice as each case is unique.