Rocket Docket Annihilator - DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Rocket Docket Annihilator - DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Plaintiffs
v.
Defendants.
___________________________________________________________________
___________
case. Fla. R. Civ. P. 1.510(a). For the reasons set forth below, Defendant
entirety.
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LAW AND ARGUMENT
Plaintiff, as moving party, has not met its initial summary judgment burden to
show conclusively the complete absence of any genuine issue of material fact and
its entitlement to judgment as matter of law. Fla. R. Civ. P. 1.510(c); Dade Cnty.
School Bd. V. Radio Station WQBA, 731 So.2d 638, 643 (Fla. 1999).
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(b)Plaintiff has failed to submit sworn authentication evidence
In support of its documentary evidence
summary judgment motion which is not properly sworn or certified is nothing more
than unverified hearsay and cannot be considered by the reviewing court. Nichols
v. Preiser, 849 So.2d 478, 481 (Fla. App. 2d DCA 2003); First Union Nat. Bank
of Fla. v. Ruiz, 785 So.2d 589, 591 (Fla. App. 5th DCA 2001); Bifulco v. State
Farm Mut. Auto. Ins., 693 So.2d 707, 710 (Fla. App. 4th DCA 1997).
are not sworn to or certified in any manner whatsoever. They are not accompanied
writings offered to prove the truth of the matter asserted, i.e., Defendant’s alleged
liability to Plaintiff. Such unverified hearsay “does not satisfy the procedural
requirements of Florida Rule of Civil Procedure 1.510(e)”, and thus “the trial court
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Because Plaintiff JAD has offered only unverified hearsay evidence in
support of its liability claims, Nichols v. Preiser, supra, 849 So.2d at 481,
Defendant submits that Plaintiff is not entitled to summary judgment in this case.
defense and the plaintiff does not, by affidavit or other sworn evidence, negate or
deny that defense, the plaintiff is not entitled to summary judgment.” Maung v.
National Stamping, LLC, 842 So.2d 214, 216 (Fla. App. 3rd DCA 2003).
Defendant submits that Plaintiff is not entitled to summary judgment in this case.
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First, rule 1.110(b) was amended to require verification of mortgage foreclosure
complaints involving residential real property. No. Sc09-1579 In Re: Amendments
to The Florida Rules of Civil Procedure - Form 1.996 (Final Judgment of
Foreclosure), (February 11, 2010), Revised On Rehearing, Per Curium.
The pleadings must be accompanied by a signed statement as follows:
“When filing an action for foreclosure of a mortgage on residential real property
the complaint shall be verified. When verification of a document is required, the
document filed shall include an oath, affirmation, or the following statement:
―Under penalty of perjury, I declare that I have read the foregoing, and the facts
alleged therein are true and correct to the best of my knowledge and belief.”
The primary purposes of this amendment are (1) to provide incentive for the
plaintiff to appropriately investigate and verify its ownership of the note or right to
enforce the note and ensure that the allegations in the complaint are accurate; (2) to
conserve judicial resources that are currently being wasted on inappropriately
pleaded ―lost note‖ counts and inconsistent allegations; (3) to prevent the wasting
of judicial resources and harm to defendants resulting from suits brought by
plaintiffs not entitled to enforce the note; and (4) to give trial courts greater
authority to sanction plaintiffs who make false allegations.
CONCLUSION
Respectfully submitted.
____________________________
__________________
Defendant, pro se
0000 Shell Isle Rd., Suite 0000
_____________, Fl. 00000
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(000) 000-0000
(000) 000-0000 (Facsimile)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent via
facsimile and regular mail to __________, Esq., 00000 Biscayne Blvd., Ste. 000, _________
______________________________
______________________
Defendant, pro se
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