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Author Topic: Affidavit Question Guys!  (Read 2236 times)
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« on: September 14, 2011, 03:54:34 PM »

Hey , let me ask some question to those more knowledgeable, here is the problem,
The OC files MSJ and says that he included in exhibit "F" an affidavit and when i search page by page there is nothing, what i found in exhibit F is a copy of the cad agreement, and no affidavit is to be found, only statements for the past 8 years or so, 2 card agreements and 2 cashed checks.

My main point of attack in defeating MSJ will be to attack the missing affidavit issue.FRCP 1.510 (e)&(f) although is hard.

1-Can the Plaintiff ask for a continuance and get the affidavit later in court ?
2-Can i attack the missing affidavit right there at the MSJ hearing and try to object to the  continuance (if there is one) to the Judge so he can not allowed the introduction of the affidavit to support their MSJ.

one last question....... can you really enforce the following in FLORIDA.(i seriously doubt it) and i quote .............

    Motion to Strike affidavit notarized out of state- Unique approach
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.

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