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1  Flordia Debtor / Florida Pleadings and Forms / Motion to Strike affidavit notarized out of state- Unique approach on: September 25, 2010, 06:21:34 PM
Florida statue 117.05 requires as part of the notary's statement (jurat) that the notary state that 1) the affiant was personally known to them or 2) that the affiant produced ID to verify that they were who they claim to be and to note what form of ID was produced. The statute even specifies what forms of ID are acceptable. Almost all other states do not require this and when an affidavit is notarized out of state it will contain that states form of notarization; which in most cases is not acceptable in Florida since there is no I.D.ing of the affiant

 Generally this is a good way to challenge affidavits authenticating business records and the amount owed in a hearing for Summary Judgment. FRCP 1.510(e) requires the that the affidavit prove the affiant is competent to testify to the matters contained in the affidavit. Without positive ID of the affiant, as required by the florida notarization law, it cannot be shown that the affiant is competent since their identity has not been verified.

You must file the motion to strike 2 days before the hearing and serve the opposing counsel. You can make the motion to strike based on FRCP 1.510(e) without stating why in the papers. In the motion you say since the affiant of the business records is not proved competent to testify to the business records the summary judgment must be dismissed, because there are disputed issues of material facts.

  At the summary judgment hearing you then produce copies of florida statute 117.05 and hand a copy to the judge and the plaintiffs lawyer. At that time you point out that the affiant identity was not verified in the jurat as required by florida law and therefore the affidavit authenticating the business records must be struck. Since the affidavit authenticating the business records and amount owed were struck, there are material issues of fact and the motion for summary judgment must be struck down.
2  Flordia Debtor / Post a Question / Filing MSJ for defendant for failure to state a claim and 57.105 sanctions. on: August 15, 2010, 10:08:07 AM
I am being sued for breach  of contract (credit card agreement). The only item attached to the complaint was a credit card agreement with a july 2009 date on it. It did not have my name or signature on it. In the complaint they allege that the account was opened in 1989. We sent them a discovery demand for a copy of the original signed agreement and a copy of the credit card application. After getting a 30 day extension to the discovery time limit they sent a letter that the credit card agreement was attached to the complaint and were unable to produce anything else. Since the plaintiff is out of state their attorneys were supposed to post a $100 bond which they have not in violation of florida statute 57.011.

We want to move for SJ for failure to state a claim, and sanctions under 57.105 if they do not withdraw the claims with prejudice, but are pro se.

two questions
1) Is failure to state a claim the correct grounds to move for SJ for defendant here ?

2) Can a pro se party be awarded fees under Fl. S 57.105 ? If not what sanctions are available for a pro-se to bring against an attorney ?

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