IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT,

IN AND FOR PINELLAS COUNTY, FLORIDA

CIVIL DIVISION

THE BANK OF NEW YORK AS TRUSTEE FOR, CASE NO. OS-00S162-CI-ll

THE CERTIFICATEHOLDERS CWABS, INC.

ASSET-BACKED CERTIFICATES, SERIES 2006-21,

PLAINTIFF,

v.

J. THOMAS WOOD,

DEFENDANT.
__________________________________ ~I

DEFENDANT'S MOTION FOR RECONSIDERDATION AND MOTION TO VACATE

ORDER OF SUMMARY JUDGMENT

COMES NOW, the Defendant 1. THOMAS WOOD (hereinafter "Defendant"), by and

through the undersigned counsel MATTHEW D. WEIDNER, and respectfully files this

MOTION FOR RECONSIDERATION AND MOTION TO VACATE SUMMARY

JUDGMENT, pursuant to precedent case law, and in support thereof states as follows:

FACTS

1. On August 5, 2010 a hearing was held in regards to the Plaintiff's Motion for Summary

Judgment. In opposition to this hearing, the Defendant timely filed an Objection to the

Plaintiff's Motion for Summary Judgment/Motion to Strike Plaintiff's Affidavit As to Amounts

Due and Owing on or about June 14, 2010 and a Supplemental Objection to Plaintiff's Motion

for Summary Judgment on or about August 4,2010.

2. The Defendant's initial twelve (12) page Objection to Plaintiff's Motion for Summary

Judgment/Motion to Strike Plaintiff's Affidavit as to Amounts Due and Owing asserted four (4)

very specific and detailed objections to Summary Judgment. The Defendant's entire June 16,
2010 Objection to Plaintiffs Motion for Summary JudgmentiMotion to Strike Plaintiffs

Affidavit as to Amounts Due and Owing is hereby incorporated by reference thereto.

3. While preparing for the August 5, 2010 hearing on Summary Judgment, counsel for

Defendant determined that there were additional grounds to object to Summary Judgment so

counsel for Defendant incorporated those additional grounds into a Supplemental Objection to

Plaintiff's Motion for Summary Judgment. To summarize, these objections were that: (1) the

Defendant timely filed a Motion to Dismiss the Plaintiffs Complaint on or about August 7,2008

and there was no Order filed denying this Motion and that accordingly no Answer had yet been

filed; (2) the purported original note filed by the Plaintiff materially conflicted with the copy of

the original note attached to the Plaintiff s complaint thereby creating issues of material fact; and

(3) the Plaintiff had failed to plead its capacity to maintain the instant litigation. The

Defendant's entire August 4, 2010 Supplemental Objection to Plaintiff's Motion for Summary

Judgment is hereby incorporated by reference thereto.

4. In addition, at the August 5, 2010 hearing, the Defendant's counsel formally objected, on

record to service of process, representing that the Plaintiff had improperly resorted to service of

process through constructive serviCe rather than personal service on this Defendant. A close

inspection of the Affidavit in Support of Constructive Service revealed that there are significant

technical deficiencies with the service and with the Affidavit of Diligent search and Inquiry upon

which the constructive service is based.

5. Also at the August 5, 2010 hearing, the Defendant's counsel objected, on record, to the

introduction of the Affidavit of Amounts Due and Owing, the introduction of the purported

Original Note, and all other evidence offered by the Plaintiff in support of its Motion.

Specifically, counsel noted that none of the evidence had been formally introduced and objected
to the procedure by which the Court received and considered the evidence which had not been

considered, or even seen, by the Defendant. Counsel repeatedly asserted that it was improper for

the Court to consider such evidence not properly introduced or made part of the proceeding

through a formal introduction by the proponent of that evidence.

6. Finally, while Plaintiffs counsel represented to the Court at the August 5, 2010 hearing

that Defendant's Motion to Dismiss had been heard by the Court and denied Defendant asserted

that no such Order was part of the court file. Immediately after the court entered its Order

granting Summary Judgment counsel for Plaintiff and Defendant personally inspected the Court

file and found that no Court Order denying the Defendant's Motion had ever been filed.

Nevertheless, Plaintiffs counsel was unwilling to concede that the Defendant's Motion to

Dismiss was still pending before this Court.

STANDARD OF REVIEW

7. Rather than constituting a motion for rehearing under Fla. R. Civ. Pro. 1.530, a motion

directed to a nonfinal order is termed a "Motion for Reconsideration" based upon the trial court's

inherent authority to reconsider and alter or retract orders prior to the entry of final judgment.

See Bettez v. City of Miami, 510 So. 2d 1242, 1242-43 (So. 3d DCA 1987).

8. An order merely granting summary judgment is not a final judgment; rather, it is a

nonfinalorder. See e.g. White Palms of Palm Beach, Inc. v. Fox, 525 So. 2d 518, 519 (Fla. 4th

DCA 1988).

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION

I. The Court incorrectly granted Summary Judgment in favor of the Plaintiff

where genuine issues of material fact exist which were timely raised and objected
to by the Defendant

A. LegalStandards
 9. Under Florida law, summary judgment is proper if, and only if, based on an examination

of evidence, no genuine issue of material fact exists and the movant is entitled to judgment as a

matter of law. See The Florida Bar v. Green, 926 So. 2d 1195, 1200 (Fla. 2006); Volusia County:

v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).

10. Furthermore, pursuant to Rule 1.510 of the Florida Rules of Civil Procedure, a Court may

grant summary judgment if, and only if, "the pleadings, depositions, answers to interrogatories,

and admissions on file together with the affidavits, if any, show that there is no genuine issue as

to any material fact and that the moving party is entitled to a judgment as a matter of law." Fla.

R. Civ. P. 1.510(c).

11. In summary judgment proceedings, the Court must take all the facts that the non-movant

states as true and must draw all reasonable inferences in favor of the non-moving party. See

Bradford v. Bernstein, 510 So.2d 1204 (Fla. 2d DCA 1987); Petruska v. Smartparks-Silver

Springs, Inc., 914 So.2d 502 (Fla. 5th DCA 2005).

12. With respect to affidavits, the admissibility of same 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.

IFTZX1767WNA34547, 779 So. 2d 450 (Fla. 2d DCA 2000). Most importantly, an affiant

should state in detail the facts showing that the affiant has personal knowledge. See Hoyt v.

S1. Lucie County, Bd. Of County Comm'rs, 705 So. 2d 119 (Fla. 4th DCA 1998) (holding an

affidavit legally insufficient where it failed to reflect facts demonstrating how the affiant would

possess personal knowledge of the matters at issue in the case); Carter v. Cessna Fin. Corp., 498
So. 2d 1319 (Fla. 4th DCA 1986) (holding an affidavit legally insufficient where the affiant

failed to set out a factual basis to support a claim of personal knowledge of matter at issue in the

case and failed to make assertions based on personal knowledge).

13. Furthermore, Fla. R. Civ. Pro. 1.510(e) provides, in part, that "[s]wom or certified copies

of all papers or parts thereof referred to in an affidavit shall be attached thereto or served

therewith." See also CSX Transp., Inc. v. Pasco County, 660 So. 2d 757 (Fla. 2d DCA 1995)

(reversing summary judgment granted below, in part, because the affiant based his statements on

reports but failed to attach same to the affidavit).

14. Florida case law is exceedingly clear that where a motion to dismiss which raises viable

defenses is pending in a foreclosure action, summary judgment is not proper. See Douglas v.

Deutsche Bank Trust Co., 995 So.2d 1144 (Fla. 5th 2008). Moreover, where no answer has been

filed, the burden on the movant of summary judgment increases; in such cases the movant must

demonstrate conclusively that no answer the defendant could file would not raise any genuine

issues of material fact. See Burch v. Kibler, 643 So.2d 1120 (Fla. 4th DCA 1994); Olin', Inc. v.

Avis Rental Car System, 105 So. 2d 497 (Fla. 3d DCA 1958); Balzebre v. 2600 Douglas, Inc.,

273 So. 2d 445 (Fla. 3d DCA 1973); White v. Harmon Glass Service, Inc., 316 So. 2d 599 (Fla.

3d 1973), cert. denied, 330 So. 2d 22.

15. Fla. R. Civ. Pro. 1.130(a) provides, in pertinent part, that "[a]ll ...contracts ... upon which

action may be brought or defense made, or a copy thereof or a copy of the portions thereof

material to the pleadings, shall be incorporated in or attached to the pleading." Bold emphasis

added. Moreover, "when a party brings an action based upon a contract and fails to attach a

necessary exhibit under Rule 1.130(a), the opposing party may attack the failure to attach a

necessary exhibit through a motion to dismiss. Where a complaint is based on a written

instrument, the complaint does not state a cause of action until the instrument or an adequate

portion thereof is attached to or incorporated in the complaint." Samuels v. King Motor Co. of

Fort Lauderdale, 782 So.2d 489, 500 (Fla. 4th DCA 2001).

16. With respect to capacity, Fla. R. Civ. Pro. 1. 120(a) provides that

[i]t is not necessary to aver the capacity of a party to sue or be sued, the authority
of a party to sue or be sued in a representative capacity, or the legal existence of
an organized association of persons that is made a party, except to the extent
required to show the jurisdiction of the court. (emphasis added)The initial
pleading served on behalf of a minor party shall specifically aver the age of the
minor party. When a party desires to raise an issue as to the legal existence of
any party, the capacity of any party to sue or be sued, or the authority of a
party to sue or be sued in a representative capacity, that party shall do so by
specific negative averment which shall include such supporting partiCUlars as
are peculiarly within the pleader's knowledge. Bold emphasis added.

17. Strict compliance with the statutory provisions governing service of process is required in

order to obtain jurisdiction over a party. See Schupak v. Sutton Hill Assocs., 710 So.2d 707 (Fla.

4th DCA 1998); Sierra Holding, Inc. Inn Keepers Supply Co., 464 So.2d 652 (Fla. 4th DCA

1985); Baraban v. Sussman, 439 So.2d 1046 (Fla. 4th DCA 1983). The strict observance is

required in order to assure that a defendant receives notice of the proceedings filed. See Electro

Eng'g Products Co., Inc. v. Lewis, 352 So.2d 862 (Fla. 1977). See also Haney v. Olin Corp., 245

So.2d 671 (Fla. 4th DCA 1971) (holding that "the major purpose of the constitutional provision

which guarantees 'due process' is to make certain that when a person is sued he has notice of the

suit and an opportunity to defend").

18. When interpreting the portion of Fla. R. Civ. P. 1. 140(b) which provides that "[a] motion

making any of these defenses shall be made before pleading if a further pleading is permitted,"

only requires that a motion for the enumerated defenses be made before pleading (and not before

a motion). The rule of statutory construction, expressio unius est exclusio alterius (roughly

translated to mean, "whatever is omitted is understood to be excluded"), applies to the case at

issue. Where the Supreme Court, in drafting the Fla. R. Civ. P., clearly intended that these

enumerated defenses be made before pleadings, the enumerated defenses shall not be waived

unless a responsive pleading has been filed.

19. A pleading is a technical legal term defined by the Florida Rules of Civil Procedure. Fla.

R. Civ. P. 1.100, entitled Pleadings and Motions, lists a limited number of pleadings. They are as

follows: (1) a complaint, (2) an answer, (3) an answer to a counterclaim, (4) an answer to a

crossclaim, (5) a third-party complaint, (6) a third-party answer, and a reply. This is an exclusive

list and all filings that are not mentioned in this list are by definition, not a pleading.

B. Argument

20. Here, a multitude of conflicts in material facts exist that should have precluded a ruling of

summary judgment in favor of the Plaintiff.

21. To begin, the Defendant objected to the affidavit submitted by the Plaintiff in support of

its Motion for Summary Judgment was based wholly on hearsay and therefore Summary

Judgment granted on this basis would be improper. While the Defendant's June 16, 2010

Objection to Plaintiff's Motion for Summary Judgment/Motion to Strike Affidavit as to Amounts

Due and Owing provides in-depth analysis of the reasoning behind the Defendant's argument,

the purported evidence is objectionable on its face because the affidavit is based entirely on

hearsay and because the Plaintiff failed to attach documents referenced in the affidavit and

because the affiant lacked personal knowledge of the facts stated therein. In further support of

this argument, the Defendant respectfully suggests that this court would refer to its June 16, 2010

Objection to Plaintiffs Motion for Summary Judgment/Motion to Strike Affidavit as to Amounts

Due and Owing for a fuller explanation of same.

 22. In addition, the Defendant properly argued that summary judgment at this stage was

improper because the Defendant's Motion to Dismiss was still pending before the Court and that

no Answer had yet been filed. While the Plaintiff s counsel asserted at the August 5, 20 I 0

hearing that the Defendant's motion had already been denied, both the Defendant's counsel and

the Plaintiffs counsel physically inspected the Court file and no Order denying the Defendant's

motion had ever been entered. As such, the Defendant's Motion to Dismiss is still pending

before this Court.

23. Because the Defendant's Motion to Dismiss is still pending, no Answer has yet been

filed. As such, the Plaintiff, as movant, had the heightened burden at the summary judgment

hearing to prove that no defense the Defendant could have plead would create a genuine issue of

material fact. Based upon the facts asserted in both this motion and the Defendant's two

objections to the Plaintiffs Motion for Summary Judgment, the Plaintiff has not met this burden.

24. There also is a material difference between the purported original note filed by the

Plaintiff and the copy of the original note attached the Plaintiffs Complaint. Specifically, the

alleged original note filed by the Plaintiff contains a blank endorsement which is not found on

the copy of the original note attached to its complaint. This creates genuine issues of material

fact regarding: (1) when the purported endorsement on the note was effectuated~ (2) the

endorsement's authenticity and veracity and; (3) the ability of the endorser to even execute such

an endorsement. In addition, the failure of the Plaintiff to amend its Complaint and incorporate

the purported original note into it distorts the Defendant's ability to litigate this case because it

unclear as to what contractual basis the Plaintiff is suing upon.

25. Genuine issues of material fact also permeate with respect to the Plaintiffs capacity to

proceed with the instant litigation because while the Plaintiffs name is identified in the caption
of its complaint and accompanying motions, nowhere else in any of the Plaintiff's pleadings is

the Plaintiff's entity status or capacity even pled. As a threshold matter, then, it is unclear

exactly who the Plaintiff even is.

26. As if this was not enough, the Defendant's counsel formally objected at the August 5,

2010, on record, to the service of process. Specifically, counsel represented that the Plaintiff had

improperly asserted service of process through constructive service; this representation is

highlighted upon closer inspection of the Affidavit in Support of Constructive Service, which

reveals that there are significant technical deficiencies with the service. It should be noted by

this Court that since the Defendant's Motion to Dismiss is not a responsive pleading and no

Answer has yet been filed, this defense has not been waived.

27. Finally, the Defendant's counsel formally objected at the August 5, 2010, and again on

record, to the introduction to the introduction of the Plaintiff's affidavit in support of its Motion

for Summary Judgment, the introduction of the purported original note, and all other evidence

offered by the Plaintiff in support of its motion. Specifically, counsel noted that none of the

evidence had been formally introduced and objected to the procedure by which the Court

received and considered the evidence which had not been considered, or even seen, by the

Defendant.

WHEREFORE, based upon the foregoing, the Defendant respectfully request this Court

grant its Motion for Reconsideration, vacate its Motion for Summary Judgment in favor of the

Plaintiff, enter an Order denying Summary Judgment, and any other relief the Court deems just

and proper.

CERTIFICATE OF SERVICE
 I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
-.
U.S. Mail on this ~of August, 2010 to KRISTIN L.POLK, Florida Default Law Group,
P.L., P.O. Box 25018, Tampa, FL 33622-5018.

ttomey for Defendant

1229 Central Avenue

St. Petersburg, FL 33705

(727) 894-3159

FBN: 0185957

 IN THE CIRCUIT COURT OF THE SIXTH .JUDICIAL CIRCUIT,

IN AND FOR PINELLAS COUNTY, FLORIDA

CIVIL DIVISION

THE BANK OF NEW YORK AS TRUSTEE FOR, CASE NO. OS-00SI62-CI-ll

THE CERTIFICATEHOLDERS CWABS, INC.

ASSET-BACKED CERTIFICATES, SERIES 2006-21,

PLAINTIFF,

v.

J. THOMAS WOOD t

DEFENDANT.
_________________________________.1

DEFENDANT'S OBJECTION PLAINTIFF'S MOTION FOR SUMMARY

JUDGMENTIMOTION TO STRIKE PLAINTIFF'S AFFIDAVIT AS TO AMOUNTS

DUE AND OWING

COMES NOW, the Defendant J. THOMAS WOOD (hereinafter "Defendant"), by and

through the undersigned counsel MATTHEW D. WEIDNER, and respectfully OBJECTS TO

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT and MOTIONS THIS COURT TO

STRIKE PLAINTIFF'S AFFlDA VIT AS TO AMOUNTS DUE AND OWING, pursuant to Fla.

R. Civ. Pro. 1.510, and in support thereof states as follows:

FACTS

1. This is an action for foreclosure of residential real property owned by the Defendant.

2. The named Plaintiff in this action is THE BANK OF NEW YORK AS TRUSTEE FOR

THE CERTIFlCATEHOLDERS CWABS, INC. ASSET-BACKED CERTIFICATES, SERIES

2006-21 (hereinafter "Plaintiff"). The Plaintiff initiated this lawsuit when it filed its complaint.

3. On or about Junc 2, 20 10 the Plaintiff, by and through its undersigned counsel, motioned

this Court for Summary Judgment and in support thereof tiled its Affidavit as to Amounts Due

and Owing (hereinafter "Affidavit").

 4. The Affiant of the Affidavit is identified as ASHLEY BARRAZA (hereinafter "Affiant").

The Affiant identified herself as the Vice President for BAC HOME LOANS SERVICING, L.P.

FIKIA COUNTRYWIDE HOME LOANS SERVICING, L.P. (hereinafter "BAC Home Loans")

and not the Plaintiff. Moreover, the relationship between BAC Home Loans and the Plaintiff is

not even defined in the Affidavit.

5. Additionally, the Affidavit, save for one cryptic line which reads that "[BAC Home

Loans] is responsible for the collection ofthis loan transaction and pursuit of any delinquency in

payments," I fails to set forth with any degree of specificity what duties BAC HOME LOANS

performs for the Plaintiff.

6. Upon information and belief, BAC Home Loans is a "middleman" of sorts who is

responsible for the transfer of funds between the various assignees of the underlying Mortgage

and Note and has no knowledge of the underlying transactions between the Plaintiff and

Defendant.

7. Upon information and belief, the Affiant, as an employee of BAC Home Loans and not

the Plaintiff, has no knowledge of the underlying transactions between the Plaintiff and

Defendant.

8. Notwithstanding this, the Affiant averred, based on her personal knowledge, that "the

Plaintiff is owed the following sums of money as of 07/07/2010 .. .$225,586.23.,,2

9. Moreover, the Affiant also averred in paragraph two (2) of the Affidavit that "1 am

familiar with the books of account and have examined all books. records, systems, and

documents kept by [BAC Home Loans] concerning the transactions alleged in the Complaint."

I See Affidavit as to Amounts Due and Owing. ~2.

2 See M! at 14.

 10. However, these books, records, systems, and documents. which form the basis of the

Affiant's statements, were not attached to the Affidavit.

11. Furthermore, the Affiant did not aver that she is the custodian of these books, records,

systems, and documents, only that she was merely "familiar" with them.

12. Finally, the Affiant averred to a conclusion of law, namely that '·\t]his Affidavit is

submitted ... for the purpose of showing that there is in this action no genuine issue as to

material fact, and that Plaintiff is entitled to a judgment as a matter of law:,3 Bold

emphasis added. However, this statement oflaw was not supported by facts stated therein.

13. Specifically, the Affiant failed to aver exactly against who the Plaintiff was entitled to

judgment as a matter of law against. Nowhere in the Affidavit does the Affiant aver that the

Plaintiff is entitled to a judgment of law against the Defendant. In fact, the Defendant is not even

mentioned in the Affidavit.

14. At best, then, the Affiant averred that the Plaintiff :was owed $267,252.61 by someone,

and that therefore the Plaintiff was entitled to final judgment against this unidentified party.

STANDARD OF REVIEW

15. Under Florida law, summary judgment is proper if, and only if, based on an examination

of evidence, no genuine issue of material fact exists and the movant is entitled to judgment as a

matter of law. See The Florida Bar v. Green. 926 So. 2d 1195, 1200 (Fla. 2006); Volusia County

v. Aberdeen at Ormond Beach, LP" 760 So. 2d 126, 130 (Fla. 2000),

16. Furthermore, pursuant to Rule 1.510 of the Florida Rules of Civil Procedure, a Court may

grant summary judgment if, and only if, "the pleadings, depositions, answers to interrogatories~

and admissions on file together with the affidavits, if any, show that there is no genuine issue as

~ See Affidavit as to Amounts Due and Owing. ~1.

to any material fact and that the moving party is entitled to a judgment as a matter of law. " Fla.

R. Civ. P. 1.51O(c).

17. Finally, the Court must take all the facts that the non-movant states as true and must draw

all reasonable inferences in favor of the non-moving party. See Bradford v. Bernstein, 510 So.2d

1204 (Fla. 2d DCA 1987); Petruska v. Smartparks-Silver Springs, Inc., 914 So.2d 502 (Fla. 5th

DCA 2005).

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION

I. The Affidavit Should be Struck and the Plaintiff's Motion for Summary
Judgment Should he Denied hecause the Affidavit Was Not Based Upon the
Affiant's Personal Knowledge

a. Legal Standards

18. 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. 1.51 O(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.

IFTZX1767WNA34547, 779 So. 2d 450 (Fla. 2d DCA 2000).

19. Additionally, a corporate officer's 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).

20. Most importantly. an affiant should state in detail the facts showing that the affiant

has personal knowledge. See Hovt v. St. Lucie County, Bd. Of County Comm'rs, 705 So. 2d

119 (Fla. 4th DCA 1998) (holding an affidavit legally insufficient where it failed to reflect facts

demonstrating how the affiant would possess personal knowledge of the matters at issue in the
case); Carter v. Cessna Fin. Corp., 498 So. 2d 1319 (Fla. 4th DCA 1986) (holding an affidavit

legally insuftlcient where the amant failed to set out a factual basis to support a claim of

personal knowledge of matter at issue in the case and failed to make assertions based on personal

knowledge. )

21. 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."

ld at 1232 (quoting Pawlik v. Barnett Bank of Columbia County, 528 So. 2d 965, 966 (Fla. 1st

DCA 1988).

22. This opposition to hearsay evidence has deep roots in Florida common law. In Capello v.

Flea Market U.S.A .. Inc., 625 So. 2d 474 (Fla. 3d DCA 1993), the Third District affirmed an

order of summary judgment in favor of Flea Market U.S.A as Capello's affidavit in opposition

was not based upon personal knowledge and therefore contained inadmissible hearsay evidence.

See also Doss v. Steger & Steger, P.A., 613 So. 2d 136 (Fla. 4th DCA 1993); Mullan v. Bishop

of Diocese of Orlando, 540 So. 2d 174 (Fla. 5th DCA 1989); Crosby v. Paxson Electric

Company, 534 So. 2d 787 (Fla. 1st DCA 1988); Page v. Stanley, 226 So. 2d 129 (Fla. 4th DCA

1969). Thus, there is ample precedent for striking affidavits in full which are not based upon the

amant's personal knowledge.

b. Argument

23. Here, the entire Affidavit is hearsay evidence as the Affiant has absolutely no personal

knowledge of the facts stated therein.

 24. As an employee of BAC Home Loans, whose relationship to the Plaintiff is not even

defined in the Affidavit, she has no knowledge of the underlying transaction between the

Plaintiff and the Defendant. Neither the Affiant nor BAC Home Loans: (1) were engaged by the

Plaintiff for the purpose of executing the underlying mOltgage transaction with the Defendant: or

(2) had any contact with the Defendant with respect to the underlying transaction between the

Plaintiff and Defendant.

25. At best, BAC Home Loans, who is not the named Plaintiff, acted as a middleman of sorts,

whose primary function was to transfer of funds between the various assignees of the underlying

mortgage and note.

26. Most importantly, the Affidavit, save for one cryptic line which reads that "[BAC Home

Loans] is responsible for the collection of this loan transaction and pursuit of any delinquency in

payments,..4 fails to set forth with any degree of specificity what duties BAC HOME LOANS

performs for the Plaintiff.

27. Thus, the Amant has failed to state in detail the facts showing that she has personal

knowledge as required by the Florida case law.

28. Because the Affiant has no personal knowledge ofthe underlying transaction between the

Plaintiff and De1endant, any statement she gives which references this underlying transaction

(such as the fact that the PlaintiiI is allegedly owed sums of monies in excess of $225,000) is, by

its very nature, hearsay.

29. The Florida Rules of Evidence defme hearsay as "a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted." Fla. Stat. §90.801(l)(c) (2007).

4 See Affidavit as to Amounts Due and Owing. ~2.

 30. Here the Affiant is averring to a statement (that the Plaintiff is allegedly owed sums of

money) which was made by someone other than herself (namely, the Plaintiff) and is offering

this as proof of the matter asserted (that Plaintiff is entitled to summary judgment) At best, the

only statements which the Affiant can aver to are those which regard the transfer of funds

between the various assignees of the Mortgage and Note.

31. The Plaintiff may argue that while the Affiant's statements may be hearsay, they should

nevertheless be admitted under the "Records of Regularly Conducted Business Activity"

exception. Fla. Stat. §90.803(6) (2007).

32. This rule provides that notwithstanding the provision of §90.802 (which renders hearsay

statements inadmissible). hearsay statements are nevertheless admissible, even though the

declarant is available as a witness, if the statement is

[aj memorandum, report, record, or data compilation, in any form, of acts, events,
conditions, opinion, or diagnosis, made at or near the time by, or from
information transmitted by, a person with knowledge, if kept in the course of a
regularly conducted business activity and if it was the regular practice of that
business activity to make such memorandum, report. record, or data compilation,
all as shown by the testimony of the custodian or other qualified witness. or as
shown by a certification or declaration that complies with paragraph (c) and s.
90.902(11), unless the sources of information or other circumstances show lack of
trusnvorthiness, Emphasis added.

33. There are, however, several problems with this argument. To begin, no memorandums,

reports, records, or data compilation have been offered by the Plaintiff.

34. Furthermore, these records were not made by a "person with knowledge" because BAC

Home does not have any knowledge of the underlying transaction between the Plaintiff and the

Defendant and because the Affidavit fails to state in detail how BAC Home Loans could possibly

have knowledge of the underlying transaction between the Plaintiff and the Detendant.
 35. Additionally, the Affiant's faiiure to attach any of the documents she refers to shows a

lack of trustworthiness.

36. Finally, the First District has recently held that lists of payments due and owing, such as

the list found in paragraph four, are inadmissible hearsay statements and not business records

and it is therefore an error to award summary judgment based on such an affidavit. Mitchell

Brothers, Inc. v. Westfield Ins. Co., 35 Fla. L. Weekly D I 07 (Fla. 1st DCA Dec. 31, 2009).

WHEREFORE, because the Affidavit is not based upon the Affiant's personal

knowledge, the Defendant respectfully request that the Plaintiffs Affidavit be struck, the

Plaintiff's Motion for Summary Judgment be denied, and other relief that the Court deems just

and proper.

n. The Affidavit Should be Struck and the Plaintiff's Motion for Summary
Judgment Should be Denied because the Plaintiff Failed to A uthenticate
Documents Referred to in the Affidavit

a. Legal Standards

37. Florida Statue §90.901 (1989) states, in pertinent part, that 4>[aJuthentication or

identification of evidence is required as a condition precedent to its admissibility."

38. The failure to authenticate documents referred to in affidavits renders the aftiant

incompetent to testify as to the matters referred to in the affidavit. See Fla. R. Civ. Pro. 1.510(e)

(which reads, in pertinent part, that "affidavits ... shall show affirmatively that the affiant is

competent to testify to the matters stated therein"); Zoda v. Hedden, 596 So. 2d 1225, 1226 (Fla.

2d DC A 1992) (holding. in part, that failure to attach certified copies of public records rendered

affiant, who was not a custodian of said records, incompetent to testify to the matters stated in

his affidavit as affiant was unable to authenticate the documents referred to therein.)
 39. A "custodian" is identified "a person or institution that has charge or custody

(of... papers)." See Black's Law Dictionary, 8th ed. 2004, custodian.

a. Argument

40. Here, the Affiant averred in paragraph two (2) that "I am familiar with the books of

account and have examined all books, records, systems, and documents kept by [BAC Home

Loans] concerning the transactions alleged in the Complaint."

41. Nevertheless, these books, records, systems, and documents which form the basis of the

Affiant's statements were not attached to the Affidavit and the Affiant did not aver that she is the

custodian of these books, records, systems. and documents, only that she was "familiar" with

them.

42. In essence, then, the Affiant averred to matters which she was incompetent to testify to in

the same matter as the affiant in Zoda, supra.

WHEREFORE. because the Plaintiff failed to authenticate documents referred to in its

Affidavit, the Defendant respectfully request that the Plaintiffs Affidavit be struck, the

Plaintiffs Motion for Summary Judgment be denied, and other relief that the Court deems just

and proper.

III. The Affidavit Should be Struck and the Plaintiff's Motion for Summary
Judgment Should be Denied because the Plaintiff Failed to Attach Documents
Referred to in the Affidavit

a. Legal Standards

43. Fla. R. Civ. Pro. 1.51O(e) provides, in part, that "[s]wom or certified copies of all papers

or parts thereof referred to in an affidavit shall be attached thereto or served therewith."

44. Failure to attach such papers is grounds for reversal of summary judgment decisions. In

CSX Transp., Inc. v. Pasco CouI!1Y, 660 So. 2d 757 (Fla. 2d DCA 1995) the Second District
reversed summary judgment granted below, in part, because the affiant based his statements on

reports but failed to attach same to the affidavit.

45. The Second District noted that because these statements were based upon said reports,

they were consequently not based upon the affiant's personal knowledge, and were therefore

inadmissible hearsay statements. Id at 759.

b. Argument

46. As previously demonstrated in Part II, supra, the Affiant referred to books, records,

systems, and documents which formed the basis of her statements, particularly her statement that

"the Plaintiff is owed the following sums of money as of 07/07/2010 ... $225586.23.,,5

47. Nevertheless and as also previously demonstrated, these books, records, systems, and

documents were not attached to the Affidavit.

48. Therefore, the Affiant just as the affiant in CSX Transp., Inc., was relying on

inadmissible hearsay statements. Admission of such an affidavit, then. would be grounds for

summary judgment.

WHEREFORE, because the Plaintiff failed to attach documents referred to in its

Affidavit. the Defendant respectfully request that the Plaintiffs Affidavit be struck, the

Plaintiff's Motion tor Summary Judgment be denied, and other relief that the Court deems just

and proper.

IV. The Affidavit Should be Struck and the Plaintiff's Motion for Summary
Judgment Should be Denied because the Affidavit Contains Impermissible
Conclusions of Law Not Supported By Facts

a. Legal Standards

5 See Affidavit as to Amounts Due and Owing at '4.

 49. An affidavit in support of a motion for summary judgment may not be based upon factual

conclusions or opinions of law. Jones Constr. Co. of Cent. Fla., Inc. v. Fla. Workers' Compo

JUA. Inc., 793 So. 2d 978, 979 (Fla. 2d DCA 2001).

50. Furthennore, an affidavit which states a legal conclusion should not be relied upon unless

the affidavit also recites the facts which justify the conclusion. Acquadro V. Bergeron, 851 So.

2d 665, 672 (Fla. 2003); Rever V. Lapidus, 151 So. 2d 61, 62 (Fla. 3d DCA 1963).

b. Argument

51. Here, the Affidavit contained conclusions of law which were not supported by facts

stated therein.

52. Specifically, the Affiant averred to a statement of law, namely that "[t]his Affidavit is

submitted ... for the purpose of showing that there is in this action no genuine issue as to

material fact, and that Plaintiff is entitled to a iudgment as a matter of law.,,6 Bold

emphasis added.

53. However, nowhere in the Affidavit does Affiant state that the Plaintiff is entitled to a

judgment as a matter of law because the Defendant owe the Plaintiff monev.

54. At best the Affidavit accuses someone of owing the Plaintiff $225,586.23 and that the

Plaintiff should be entitled to a judgment as a matter of law against that specific someone.

55. By not clearly identifying the parties in question, the Affiant has not adequately

supported her legal conclusions with specific facts.

WHEREFORE, because the Affidavit contains impennissible conclusions of law not

supported by facts therein, the Defendant respectfully request that the Plaintiffs Affidavit be

struck, the Plaintiff's Motion for Summary Judgment be denied, and other relief that the Court

deems just and proper.

6 See M at 1f1.
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished bv

U.S. Mail on this ~Of

11..(0:...
June, 2010 to KRISTIN L.POLK. Florida Default Law Grou~,

P.L., p.o. Box 25018, Tampa, FL 33622-5018.

entral Avenue
St. Petersburg, FL 33705
(727) 894-3159
FBN: 0185957
 IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT,

IN AND FOR PINELLAS COUNTY, FLORIDA

CIVIL DIVISION

THE BANK OF NEW YORK AS TRUSTEE FOR, CASE NO. 08-008162-CI-11

THE CERTIFICATE HOLDERS CWABS, INC.

ASSET-BACKED CERTIFICATES, SERIES 2006-21,

PLAINTIFF,

v.

J. THOMAS WOOD,

DEFENDANT.
-----------------------------------,
DEFENDANT'S SUPPLEMENTAL OBJECTION PLAINTIFF'S MOTION FOR
SU~ARYJUDGMENT

COMES NOW, the Defendant J. THOMAS WOOD (hereinafter "Defendant"), by and

through the undersigned counsel MATTHEW D. WEIDNER, and respectfully files this

SUPPLEMENTAL OBJECTION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT,

pursuant to Fla. R. Civ. Pro. 1.510, and in support thereof states as follows:

FACTS

1. This is an action for foreclosure of residential real property owned by the Defendant.

2. The named Plaintiff in this action is THE BANK OF NEW YORK AS TRUSTEE FOR

THE CERTIFICATEHOLDERS CWABS, INC. ASSET-BACKED CERTlflCATES, SERIES

2006-21 (hereinafter "Plaintiff'). The Plaintiff initiated this lawsuit when it filed its Complaint

on or about June 3, 2008.

3. On or about August 7.2008 the Defendant timely filed a Motion to Dismiss the instant

action citing various defects in the PlaintitT's Complaint. While the Plaintiff eventually

responded to this request on or about October 19,2009, the Defendant's motion has not yet been