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IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA CIVIL DIVISION BAYVIEW LOAN SERVICING COMPANY, LLC, CASE NO. 29-2009-CA-006736 a Delaware Limited Li v ROBERT A. KEY, JR. DEFENDANT. / NOTICE OF HEARING PLEASE TAKE NOTICE that the undersigned counsel will call up for hearing the following: MATTER: Defendant's Motion to Strike Affidavit of Amounts Due and Owing; Defendant’s Objection to Summary Judgment DATE: 2123/2010 TIME: 3:30 p.m. PLACE: Hon. Bernard Silver Hillsborough County Courthouse 800 East Twiggs Street, Room 519, Tampa, FL 333602 CERTIFICATE OF SERVICE THEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail, email and hand deliveryon this 17th day February, 2010 to BRJAN L. ROSALER of, Popkin & Rosaler, P.A., 1701 West Hillsboro Boulevard, Suite 400, Dgefffeld Beach, FL 33442. WEIDNER for Defendant 9 Central Avenue St. Petersburg, FL 3370S (727) 894-3159 FBN: 0185957 IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA CIVIL DIVISION BAYVIEW LOAN SERVICING COMPANY, LLC, CASE NO. 29-2009-CA-006736 a Delaware Limited Liability Company PLAINTIFF, v. ROBERT A. KEY, JR. DEFENDANT. / DEFENDANT’S OBJECTION TO SUMMARY JUDGMENT COMES NOW, the Defendant ROBERT A. KEY, JR. (hereinafter “Defendant”), by and through the undersigned counsel MATTHEW D. WEIDNER, and OBJECTS TO PLAINTIFF'S. MOTION FOR SUMMARY JUDGMENT in the above entitled civil action, pursuant to Fla. R. Civ. Pro. 1.510, and in support states as follows: FACTS 1. This is an action of foreclosure of real property owned by the Defendant, instituted on March 17, 2009 when BAYVIEW LOAN SERVICING COMPANY, LLC, a Delaware Limited Liability Company (hereinafter “Plaintif?") filed its Complaint. 2. On April 7, 2009, the Defendant, by and through the undersigned counsel, filed his Answer. 3. On or about April 22, 2009, the Plaintiff filed its Motion for Summary Judgment and for Attomey’s Fees and Costs, arguing that there was no material issue of law or fact. The Plaintiff argued that “the provisions of the note and mortgage being sued upon in this action confer upon the Plaintiff the right to accelerate all sums due thereunder upon the default thereof, and the right to foreclosure all interests in the encumbered property which are inferior to the lien of said mortgage”® and that the Plaintiff “owns and holds the note."” Additionally, the Plaintiff stated that “[it] has an interest superior to any interest of DEFEDANTS in and to the real property described in the Lis Pendes filed herein.”* Emphasis added. 4. On April 30, 2009, the Defendant, by and through the undersigned counsel, filed his First Request for Production of Documents and propounded his First Set of Interrogatories to the Plaintiff. 5. The Plaintiff, unable to meet the requirements of the above-mentioned discovery request, filed its Motion for Extension of Time on June 2, 2009. 6. Notwithstanding this Motion, the Plaintiff has never responded to the Defendant's discovery requests and chose instead to file its Notice of Hearing for its Motion for Summary Judgment of Foreclosure on December 7, 2009, LEGAL REASONING IN SUPPORT OF OBJECTION L. Plaintiff Has Failed to Respond to Defendant's Discovery Requests It is a long-standing common law rule that a decision regarding summary judgment will ‘not be entered where there is outstanding discovery. In Henderson v. Reyes, 702 So. 2d 616 (Fla. 34 DCA 1997), the Third District held that it was an error for the trial court to enter a final summary judgment of foreclosure in favor of Reyes while there were depositions that had not been completed and an outstanding request for the production of documents. See also Villages at Mango Key Homeowners Ass'n, Inc. v. Hunter Development, Inc., 699 So. 2d 337 (Fla. Sth ° See Motion for: Ju f Forecl Attorney's Fees and Costs, $4. Tid at 46. "Idatgs, DCA 1997) (holding that summary judgment is inappropriate and premature when discovery is ongoing and depositions or other discovery are outstanding); Collazo v. Hupert, 693 So. 2d 631, 631 (Fla. 34 DCA 1997) (holding that while “discovery was still pending, the trial court should not have entertained a motion for summary judgment until such discovery was concluded.”) Here, the Plaintiff has never responded to the Defendant's First Request for Production of Documents or the Defendant's First Set of Interrogatories. In fact, the Plaintiff filed a Motion for Extension of Time as it could not meet the Defendant's request. Despite filing this Motion for Extension and having knowledge that discovery was due and owing to the Defendant, the Plaintiff nevertheless filed its Notice of Hearing for Summary Judgment. However, it would be an error to grant a summary judgment of foreclosure when production and interrogatories are due and owing, just as the Third District in Henderson ruled. As the Plaintiff has not responded to the Defendant’s outstanding discovery requests, including the Defendant's First Request for Production of Documents and the Defendant's First Set of Interrogatories, it would be premature and a reversible error to grant the Plaintiff's Motion for Summary Judgment of Foreclosure, and for Attorney's Fees and Costs. Il. Plaintiff Has Failed to Serve All Evidence Relied on in its Motion Pursuant to Fla. R. Civ. Pro. 1.510(¢), “the movant shall serve the motion at least 20 days before the time fixed for the hearing, and shall also serve at that time copies of any summary judgment evidence on which the movant relies that has not already been filed with the court.” Emphasis added, Thus, by the clear language of the statute, the moving party to a summary judgment proceeding must serve the adverse party with any and all “summary judgment evidence” which it relies on and refers to in its motion. Here, the Plaintiff has failed to serve the Defendant with all of the summary judgment evidence it relies upon. Specifically, the Plaintiff has failed to serve the Defendant with the Lis Pendens referred to in {5 of its Motion for Summary Judgment of Foreclosure. The failure to do so calls into question the Plaintiff's argument that “it] has an interest superior to any interest of DEFENDANTS in and to the real property described in the Lis Pendens filed herein.”® This creates a material issue of fact which would preclude summary judgment. As the Plaintiff has failed to serve the Defendant with all the summary judgment evidence it relies upon in its motion, it would be a reversible error to grant the Plaintiff's Motion for Summary Judgment of Foreclosure, and for Attorney’s Fees and Costs. WHEREFORE the Defendant would respectfully request that the Plaintiff's Motion for Summary Judgment of Foreclosure, and for Attomey’s Fees and Costs be stricken and no hearing held on the Motion until such time as the Defendant's discovery requests are met and the Plaintiff serves the Defendant with all the summary judgment evidence referred to in its Motion. CERTIFICATE OF SERVICE IHEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by US. Mail, email and hand delivery on this 17th day February, 2010 to BRIAN L. ROSALER of, Popkin & Rosaler, P.A., 1701 West Hillsboro Boulevard, Suite 400, Deerfield Beach, FL 33442. 1229 Central Avenue St. Petersburg, FL 33705 (727) 894-3159 FBN: 0185957 ° See Motion for Summary Final Judgment of Foreclosure, and for Attomey’s Fees and Costs, $5. IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA CIVIL DIVISION BAYVIEW LOAN SERVICING COMPANY, LLC, CASE NO. 29-2009-CA-006736 a Delaware Limited Liability Company PLAINTIFF, ve ROBERT A. KEY, JR. DEFENDANT. ! DEFENDANT'S MOTION TO STRIKE AFFIDAVIT OF AMOUNTS DUE AND OWING COMES NOW, the Defendant ROBERT A. KEY, JR. (hereinafter “Defendant”), by and through the undersigned counsel MATTHEW D. WEIDNER, and respectfully MOTIONS THIS COURT TO STRIKE AFFIDAVIT OF KATHLEEN M. SOVIC in the above entitled civil action, pursuant to Fla, R. Civ. Pro, 1.510, and in support thereof states as follows: FACTS 1. This is an action for foreclosure of real property owned by the Defendant. 2. On or about April 22, 2009, BAYVIEW LOAN SERVICING COMPANY, LLC, a Delaware Limited Liability Company (hereinafter “Plaintiff”), by and through its counsel Popkin & Rosaler, P.A., filed its Affidavit of Amounts Due and Owing in Support of Motion for Final Summary Judgment (hereinafter “Affidavit”) as an attachment to its Motion for Summary Final Judgment of Foreclosure, and for Attorney’s Fees and Costs. 3. The Affiant of the above-referenced Affidavit was identified as KATHLEEN M. SOVIC (hereinafter “Affiant”), who purported to be the First Vice President of the Plaintiff. 4. The Affiant averred that she “[had] personally reviewed the records of BAYVIEW LOAN SERVICING, LLC...and make this Affidavit based upon personal knowledge obtained therein. The information hereinafter given is contained in the original books and records maintained in the office of said agent.”" Emphasis added. However, the Plaintiff failed to attach any of these original books and records referenced in the Affidavit. 5. Furthermore, the Affiant averred that the Defendants were in default of the Note and Mortgage payment by failure to make payment due on December 01, 2008, and all subsequent payments.” In addition, the Affiant averred that The following amounts are due and payable: a) Principal Balance of $363,334.81 b) Accrued interest from November 01, 2008 through May 1, 2009 in the amount of $21,812.70 ©) Late charges accrued up to acceleration date $1,021.80 4) Default Interest (per diem $100.93) $14,836.17 €) Taxes $515.43 f) Prepayment Penalty $21,522.54° ‘Nevertheless, the Affiant did not attach any documents or memorandum in support of this claim. LEGAL REASONING IN SUPPORT OF MOTION I. Plaintiff Failed to Attach Documents Referred to in the Affidavit Fla. R. Civ. Pro. 1.510(e) provides, in part, that “[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” Failure to attach such papers is grounds for reversal of summary judgment decisions. See CSX Transp.. Inc. v. Paseo County, 660 So. 2d 757 (Fla. 2d DCA 1995) (reversing summary judgment granted below where the affiant based statements on reports but failed to attach same to the affidavit.) ' See ‘of Amounts Due and Owing in Support of Motion for Final Summary Judgment, $2. "Ida Q. "Id at 999. Here, the Affiant averred that she “[had] personally reviewed the records of BAYVIEW LOAN SERVICING, LLC...and make this Affidavit based upon personal knowledge obtained ‘The information hereinafter given is_contained in the original books and records maintained in the office of said agent.’ Emphasis added. Thus, all information referred to in therei the Affidavit was contained within records and books allegedly belonging to the Plaintiff. However, the Plaintiff failed to attach to the Affidavit any swom or certified copies of this information. The failure to do so is a direct violation of Fla. R. Civ. Pro. 1.510(e). The Plaintif?’s failure to attach swom or certified copies of the books and records referred to in its Affidavit is a violation of Fla. R. Civ. Pro. 1.510(¢), and failure to attach such books and records is grounds for reversal of summary judgment decisions. Therefore, the Affidavit should be struck in whole, IL. The Affidavit Contains Inadmissible Hearsay Evidence As a threshold matter, the admissibility of an affidavit rests upon whether the facts contained therein would be admissible in evidence. See Fla. R. Civ. Pro. 1.510(e) (reading, in pertinent part, “that affidavits...shall set forth such facts as would be admissible in evidence.”) Hearsay statements* are inadmissible in evidence and the inclusion of such statements within affidavits is grounds for reversal of a summary judgment ruling. See In re Forefeiture of 1998 Ford Pickup, Identification No. 1FTZX1767WNA34547, 779 So. 2d 450 (Fla. 2d DCA 2000) (holding, in part, that inadmissible hearsay statements, to which no exception applied, was grounds for holding an affidavit invalid on its face and for the reversal of summary judgment granted below.) See also Capello v. Flea Market U.S.A., Inc,, 625 So. 2d 474 (Fla. 34 DCA * See Affidavit of Amounts Due and Owing in Support of Motion for Final Summary Judgment, (2. * The Florida Rules of Evidence define 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(1)(¢) (2007) 1993); 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. Sth DCA 1989); Crosby v. Paxson Electric Company, 534 So. 2 787 (Fla. Ist 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 based upon inadmissible hearsay evidence. Here, the Affidavit contains inadmissible hearsay statements in 47, which alleges that the Note and Mortgage payments are in default by failure to make payment due December 01, 2009, as well as 9, which lists the amounts allegedly due and payable to the Plaintiff. The Affiant did not attach any documents or memorandum in support of this claim and not clear the source from which such information was purportedly obtained other than the affiant’s reference to “the records” of Bayview Loan Servicing, LLC. Thus the Affiant averred to a statement (that the Note and Mortgage were in default and therefore the Plaintiff was owed money) made by referring to something (presumably a computer screen) and offered that as proof of the matter asserted (that the Defendants were in default of the Note and Mortgage payments.) These statements meet the definition set forth in Fla. Stat. §90.801(1)(c) and are therefore, by their very nature, inadmissible hearsay evidence. The Plaintiff may argue that while 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). This rule provides that notwithstanding the provision of §90.802 (which renders hearsay statements inadmissible), hearsay statements are not inadmissible, even though the declarant is available as a witness, if the statement is [a] 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 trustworthiness. Emphasis added, There are, however, several problems with this argument. To begin, and as previously demonstrated, no memorandums, reports, records, or data compilation have been offered by the Plaintiff and the failure to attach same can be indicia of a lack of trustworthiness as to the source of the information. Furthermore, the First District has recently held that lists of payments due and owing, such as the list found in 49, 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 D107 (Fla. Ist DCA Dec. 31, 2009). The Affidavit contained statements made by someone other than the Affiant to which no hearsay exception applies. Such statements are inadmissible hearsay and grounds for reversal of summary judgment decisions. Therefore, the Affidavit should be stricken in whole. WHEREFORE, Defendant asks this Court to GRANT its MOTION TO STRIKE AFFIDAVIT OF AMOUNTS DUE AND OWING and any other relief the Court deems just and proper. CERTIFICATE OF SERVICE THEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail, email and hand deliveryon this 17th day February, 2010 to BRIAN L. ROSALER of, Popkin & Rosaler, P.A., 1701 West Hillsboro Boulevard, Suite 400, Deertig h, FL 33442. 9 Central Avenue St. Petersburg, FL 33705 (727) 894-3159 FBN: 0185957 IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA. BAYVIEW LOAN SERVICING, LLC, A DELAWARE LIMITED LIABILITY COMPANY CASE NO. 09-06736 v. PLAINTIFF ROBERT A. KEY, JR. DEFENDANT. / DEFENDANT'S AFFIDAVIT IN OPPOSITION TO SUMMARY JUDGMENT COMES NOW, the Defendant ROBERT A. KEY and hereby files this Affidavit and states as follows: 1. 2. Tam at least 21 years at the time of making this Affidavit. That I have reviewed the matters asserted in this Affidavit and make this Affidavit based on matters personally known to me. That I dispute the facts and matters that are asserted within the PlaintifP's Motion for Summary Judgment and Complaint for Foreclosure. ‘That I specifically dispute the allegations of fact that are contained within the Plaintiff's Affidavit in Support of Summary Judgment including, but not limited to, the amount of money that is alleged to be owed. That I specifically dispute that owe any amount of money to the Plaintiff as named in the complaint. That I specifically dispute that I have any contractual relationship or agreement with the Plaintiff that would subject me to a suit by the Plaintiff. That I specifically dispute that I consented to any contractual relationship with the Plaintiff as named in this lawsuit. 10. ML. 12. That I timely filed an Objection to Substitution of Party Plaintiff in this matter and that I herein object to being subjected to suit by either of the Plaintiffs ‘who are named in this suit. That no party provided me with the notices as described in Paragraphs 19 and 22 of the mortgage that are at issue in this complaint and that the Plaintiff failed to engage in other actions which it was required to do prior to filing a lawsuit against me. That the Plaintiff failed to engage in efforts to modify the terms of the loan or to arrange a face to face interview with me as required. That the Plaintiff has otherwise failed to engage in actions that are a pre- requisite to filing this lawsuit against me, ‘That the Plaintiff has failed to respond to the discovery requests that I served upon them. STATE OF ZO Ki /D Ft COUNTY OF GH] Before me on this the {7g Day of February, 2010 personally appeared LONNIE HASTINGS who produced a Koao .7é/-7ed8-Driver's License and who signed this Affidavit under oath. ROBERT A. sgh Y A