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IN THE CIRCUIT COURT OF THE ____________ JUDICIAL CIRCUIT

IN AND FOR _____________ COUNTY, ______________ {State} CIVIL


DIVISION

__________________________ AS TRUSTEE OF ___________


_____________________________, ASSET BACKED
PASS-THROUGH CERTIFICATES, SERIES CASE NO:
______________
20__-xx UNDER THE POOLING & SERVICING
AGREEMENT DATED AS OF AUGUST __, 20__,
WITHOUT RECOURSE.

Plaintiffs

v.

____________ and _____________

Defendants.
___________________________________________________________________
___________

DEFENDANT’S MEMORANDUM IN OPPOSITION TO


PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Defendant___________________________ now files this Memorandum in

Opposition to Plaintiff’s Motion for Summary Judgment in the above-captioned

case. Fla. R. Civ. P. 1.510(a). For the reasons set forth below, Defendant

contends that Plaintiff summary judgment motion should be overruled in its

entirety.

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LAW AND ARGUMENT

Defendant states that Plaintiff is not entitled to summary judgment because

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).

(a) The Plaintiff is not entitled to summary judgment because there


are numerous unresolved questions of fact raised by Defendants
Answer.

Generally, "[a] movant is entitled to summary judgment 'if the pleadings,


depositions, answers to interrogatories, admissions, affidavits, and other
materials as would be admissible in evidence on file 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.' " Estate of Githens ex rel. Seaman v. Bon
Secours-Maria Manor Nursing Care Ctr., Inc., 928 So. 2d 1272, 1274 (Fla.
2d DCA 2006) (quoting Fla. R. Civ. P. 1.510(c)). But if "a plaintiff moves for
summary judgment before the defendant has filed an answer, 'the burden is
upon the plaintiff to make it appear to a certainty that no answer which the
defendant might properly serve could present a genuine issue of fact.' “BAC
Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936,
937-38 (Fla. 2d DCA 2010) (quoting Settecasi v. Bd. of Pub. Instruction of
Pinellas County, 156 So. 2d 652, 654 (Fla. 2d DCA 1963)). Thus, the
standard to establish entitlement to summary judgment requires the plaintiff
to establish that "the defendant could not raise any genuine issues of
material fact if the defendant were permitted to answer the complaint." Id. at
938. See also Howell v. Debb, Case No. 2D09-3664 Opinion filed May 28,
2010, (2nd DCA 2010).

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(b)Plaintiff has failed to submit sworn authentication evidence
In support of its documentary evidence

Under Florida law, the submission of documentary evidence in support of a

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).

In this case, the documents attached to Plaintiff’s summary judgment motion

are not sworn to or certified in any manner whatsoever. They are not accompanied

by any affidavit of a records custodian or other proper person attesting to their

authenticity or correctness. They are, without question, unverified out-of-court

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

[cannot] properly consider them in deciding a motion for summary judgment.”

Nichols v. Preiser, supra, 849 So.2d at 481.

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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.

(c) Plaintiff JAD has failed to conclusively negate Defendant’s


affirmative defenses

In Florida, “[t]he law is clear that where a defendant pleads an affirmative

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).

In this case, Defendant raised affirmative defenses in its responsive

pleading. Plaintiff’s Motion ignores these affirmative defenses. Plaintiff has

submitted no documentary evidence which, as noted above, is insufficient to

conclusively disprove any of the affirmative defenses. Maung v. National

Stamping, LLC, supra, 842 So.2d at 216.

Defendant submits that Plaintiff is not entitled to summary judgment in this case.

(d)Plaintiff has failed to comply with the newly prescribed


requirement for verification of pleadings.

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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

For the above-mentioned reasons, Defendant states that Plaintiff‘s Motion

for Summary Judgment should be overruled in its entirety.

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, _________

Florida 33161 this ____ day of _________, 20__.

______________________________
______________________
Defendant, pro se

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