IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY FLORIDA

BANKUNITED, AS SUCCESSOR IN INTEREST TO BANKUNTED, FSB Plaintiff, v.

CASE NO. 50 2009 CA 024244 XXXXMB (AW) DEFENDANTS MOTION TO STRIKE PLAINTIFFS AFFIDAVIT IN SUPPORT OF SUMMARY JUDGMENT

ARPAD TOTH Defendant,

Defendant, Individual ARPAD TOTH (hereafter Defendant) in Propria Persona as undersigned, hereby moves this Court to strike the Affidavit in Support of Plaintiffs Motion for Summary Judgment executed by Lori Siler for the reasons set forth below:

1. In support of its Motion for Summary Judgment, Plaintiff filed the Affidavit in support of Plaintiffs motion for summary judgment (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. (Hereafter Plaintiff) 3. The original lender of the Defendants loan was BankUnited FSB. 4. 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(e) 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. An affiant fails to satisfy this competency requirement where affiant merely states, without more, that has personal knowledge. Montejo Investment. N.V. v. Green Cos.,Inc of Florida, 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 be best of his knowledge and belief the facts were true and accurate, affidavit was legally insufficient as it failed to show that affiant was competent to testify to matters set forth therein, was not based on personal knowledge, and did not set forth facts that would be admissible in evidence 8. An affidavit which shows conclusively on its face that the affiant could not have possess personal knowledge of the matters stated therein likewise is legally deficient. See: Avatar Props. Inc. v. Boney. 494 So. 2D 289 (Fla.2nd DCA 1986) See also: 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 the basis of personal knowledge); 49 Fla. Jur 2d, Summary Judgment 39 (2006). 9. In this instant case Lori Siler claims under Paragraph One (1) she is personally familiar with the loan which Plaintiff is entitled to enforce pursuant to the Purchase and Assumption agreement facilitated by the FDIC. However she fails to offer any evidence in support of her statement, fails to attach a certified copy of such alleged Agreement, or any other document referring to the purported Agreement. Therefore, her affidavit falls under the hearsay rule (Fla.Statute 90.801) and is inadmissible as evidence. When a document supplies the bases for an affiants personal knowledge, the affiant must attach the document to the affidavit. See: Zoda v. Hedden, 596 So. 2d 1225 (Fla. 2nd DCA 1992), the 2nd DCA reversed an entry of summary judgment where the only record evidence was an affidavit, relying on records which were neither attached nor authenticated. Likewise, in CSX Transp.,Inc. v Pasco County, 660 So. 2d 757 (Fla.2nd DCA 1995) (court reversed summary judgment where witness based statement on reports, failed to attach reports to affidavit.) 10. Under paragraph 3, Lori Siler claims she has personal knowledge of the books and records of the Plaintiff but latter admits that information and entries are made by persons (other than her) with knowledge of the information being recorded. She does not state what her job is and clearly admits that she relies upon someone elses personal knowledge for her claims. Therefore, her affidavit lacks the personal knowledge required, regardless of its assertion to the contrary. 11. Under paragraph 4, she makes the following statement The allegations of the Complaint filed in this action are true and correct. The Lori Siler Affidavit contains no more than conclusions of law, inadmissible statements of ultimate fact, hearsay from inadmissible

business records, and recitations of boilerplate language without any specific factual basis for the Court to determine their credibility. Such conclusory statements are legally insufficient to support a Motion for Summary Judgment. See: Dean v. Gold Coast Theatres, Inc., 156 So. 2d 546 (Fla. 2d DCA 1963) (Statements of ultimate facts in an affidavit in support of a motion for summary decree are of no weight.) Accordingly, these statements, made without any factual basis or support, should be given no weight and the Motion denied to the extent it relies upon the Affidavit. 12. Under paragraph 5,6,7,8, Lori Siler makes a claim for the amount due and owing including a breakdown of several unsubstantiated, unverified charges made by Plaintiff. Defendant firmly objects to purported amount allegedly owed by Defendant. Specifically, Defendant objects to the following charges made by Plaintiff: The amount of attorneys fees allegedly paid to Van Ness Law Firm. The Monthly repeated charges of Property Inspection Fee , Escrow Advance, Courier Fee, Other fees

Conclusion

Lori Silers Affidavit Was Not Based upon her Personal Knowledge 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)). 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 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 base of her affidavit is the alleged Purchase and Assumption agreement between the Plaintiff and the FDIC. However she fails to attach the copy of this alleged document in direct violation of Fla. Stat. 90.901 (1989) and Fla. R. Civ. Pro. 1.510(e). Furthermore, in paragraph 3 of her affidavit she relies on information that was entered by someone else (hearsay). In paragraph 4, she claims that The allegations of the Complaint filed in this action are true and correct. That is nothing more than recitation of boilerplate language. It is her conclusion and opinion rather than admissible fact. In paragraph 6, 7, 8 she makes a claim for the amount due to Plaintiff. However this alleged amount is full of unverified and undocumented charges. Defendant firmly objects to her entire affidavit.

WHEREFORE, the Defendant prays that LORI SILER's Affidavit be stricken from the evidence in the above action.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been furnished by U.S. mail to Kahane&Associates, P.A. 8201 Peters Road, Suite 3000 Plantation, Florida 33324 on October 26th 2011.

ARPAD TOTH