IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA CASE NUMBER: 16-2006-CA-001265-XXXX-MA Div. CV-D

HSBC BANK USA, NATIONALASSOCIATION, AS TRUSTEE FOR HOME EQUITY LOAN TRUST SERIESAE 2005-HE5, Plaintiff,vs.

MARILYN G. HARLEY, ET AL., Defendants.

DEFENDANT’S MEMORANDUM IN OPPOSITION TO SUMMARY JUDGMENT

Comes now the defendant and submits this memorandum in opposition to plaintiff’s

motion for summary judgment and for attorney’

1. Summary judgment cannot be granted unless the pleadings, depositions, answers to

interrogatories, and admissions on file together with affidavits, if any, conclusively 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)

2. Summary Judgment is improper if the record raises even the slightest doubt that an

issue of material fact exists. Williams v. Lake City, 62 So.2d 732,733 (Fla. 1953); Connell v.

Sledge, 306 So.2d 194,196 (Fla. 1st DCA 1975)

3. The burden is upon the party moving for summary judgment to establish that there is

no issue of material fact and that he is entitled to a judgment as a matter of law. Id. Until the

moving party conclusively establishes there is no genuine issue of material fact, the legal

sufficiency of the evidence on the merits should not be addressed. Dade County Sch. Bd. v.

Radio Station WQBA, 731 So.2d 638,643 (Fla.1999)

4. The law is well settled in Florida that when considering a motion for Summary

Judgment the Court must draw every possible inference in favor of the party against whom

Summary Judgment is sought. Wills v. Sears, Roebuck & Co., 351 So.2d 29, 30 (Fla. 1977);

Hance v. The Dime savings Bank of New York, FSB, 678 So.2d 11 (Fla. 1st DCA 1996) citing

Moore v. Morris, 475 So.2d 666 (Fla. 1985)

5. Summary Judgment should not be granted unless the facts are so crystallized that

nothing remains but a question of law. Shaffran v. Holness, 93 So.2d 94,97-98 (Fla. 1957) If the

evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable

inferences or if it intends to prove the issues, it should be submitted to the jury as a question of

fact to be determined by it. Williams, 62 So.2d at 733

6. Summary Judgment is particularly unsuitable in those cases where the facts and

circumstance indicate a possibility of an estoppel or a waiver or an equitable defense. Cross v.

Federal National Mortgage Association, 359 So.2d 464,465 (Fla. 4th D.C.A. 1978); 22 Fla. Jur.

2d Estoppel and Waiver, § 9; Macina v. Magurno, 100 So.2d 369, 373 (Fla. 1958)

7. A party should not be deprived of his or her full day in court by summary proceedings

if the records indicate that he or she has a bona fide potential cause of action or defense. Monroe

v. Appelton, 419 So.2d 356,357 (Fla. 2nd DCA 1982) Great caution should be exercised in any

summary judgment proceeding denying the litigant ample opportunity to demonstrate that he is

entitled to the benefit of a trial. Hance, supra, citing Stephens v. Dichtenmueller, 216 So.2d 448

(Fla. 1968)

8. Where the non-moving party has raised affirmative defenses as in this case, it is

incumbent upon the moving party to either disprove those affirmative defenses or establish their

legal insufficiency. Frost v. Regions Bank, No. 4D08-3168 (Fla. 4th DCA 2009); Knight Energy

Services, Inc. v. Amoco Oil Co., 660 So.2d 786 (Fla. 4th DCA 1995), Federal Sav. & Loan Ins.

Corp. v. Two Rivers Assoc., Inc., 880 F.2d 1267,1272 (11th Cir. 1989)

9. Plaintiff is not entitled to summary judgment in this action because there are multiple

facts in dispute and additionally the plaintiff is not entitled to judgment as a matter of law.

Family Bank v. Able Realty of America Corp., 702 So.2d 1322 (Fla. 4th DCA 1998) (“court in

its discretion may refuse to grant prayer for foreclosure of mortgage for equitable

reasons…”mortgage foreclosure is an equitable action and thus equitable defenses are

appropriate”)

10. This court is obliged to apply the controlling law and to maintain consistency with

other judicial results to avoid confusion and problems with application of the law in determining

the plaintiff’s motion for summary judgment.

11. In the present case the Defendant, in her answer and affirmative defenses clearly

presents the court with disputed issues of material fact left unresolved by Plaintiff’s filings as set

out below and in the defendant’s affidavit in opposition to plaintiff’s motion for summary

judgment and in defendant’s previous filings with the court, all of which require the court to

deny the plaintiff’s motion for summary final judgment of foreclosure. Florida law denies a

plaintiff in this circumstance the right to summary judgment and prevents the court from granting

a summary judgment.

PLAINTIFF HAS FAILED TO PRESENT ADMISSIBLE EVIDENCE OF STANDING

12. In Florida, in order to maintain a residential mortgage foreclosure action the action

must be by the owner and holder of the mortgage and the note at the commencement of the

action; must have a sufficient stake in the outcome of the litigation and must be recognized in the

law as being a real party in interest. Your Construction Center, Inc. v. Gross, 316 So.2d 596

(Fla. 4th DCA 1975), Greenwald v. Triple D Properties, Inc., 424 So.2d 185, 187 (Fla. 4th DCA

1983); Kumar Corp. v. Nopal Lines, Ltd,et al, 462 So.2d 1178 (Fla. 3d DCA 1985).

13. A plaintiff’s lack of standing at the commencement of a case is a fault that cannot be

cured by gaining standing after the case has been filed. Progressive Express Ins. Co. v. McGrath

Community Chiropractic, 913 So. 2d 1281,1285 (Fla. 2d DCA 2005). See also, Maynard v. The

Florida Board of Education, 2008 Fla. App. LEXIS 5890; 33 Fla. L. Weekly D 1110 (Fla. 2nd

DCA 2008) (Standing may be raised even after a verdict is entered as long as it is preserved at

the trial court)

14. Parties may not establish the right to maintain an action retroactively by acquiring

standing after the fact. If the party was without standing when the suit was filed then a new

lawsuit must be filed. Progressive, 913 So. 2d at 1285 (citing Jeff-Ray Corp. v. Jacobson, 566

So. 2d 885, 886 (Fla. 4th DCA 1990) (finding that "the assignee of a mortgage could not

maintain the mortgage foreclosure action because the assignment was dated four months after the

action was filed, if the plaintiff wished to proceed on the assignment, it must file a new

complaint.")

15. The Defendant, in her answer and affirmative defenses clearly presents the court with

disputed issues of material fact as to whether the Plaintiff has standing to bring the foreclosure

action against Defendant and the plaintiff has failed to file any paper or affidavit with the court

that presents the court with admissible evidence to refute the defendant’s factual claims that:

a. Plaintiff is not the real party in interest or the holder of the note;

b. the mortgage was not assigned to the plaintiff prior to the filing of this foreclosure action;

c. the January 30, 2006 assignment of mortgage attached to the plaintiff’s amended complaint states that the assignment is of the mortgage and the promissory note that are the subject of this foreclosure action, but the plaintiff has failed to provide any admissible evidence to this court that identifies or establishes how Mortgage Electronic Registration Systems, Inc. (“MERS”) had any right or legal ability to transfer any interest in the subject promissory note;

d. the January 30, 2006 assignment attached to the plaintiff’s amended complaint that

purportedly assigns the mortgage and the promissory note from MERS in its corporate capacity as owner and not “as nominee”is in “c/o Wells Fargo Bank, N.A.” while the mortgage attached to the complaint identifies the owner of the mortgage as “Trimerica Mortgage Corporation dba Avaris Capital”, with MERS as a nominee for said lender;

e. the mortgage in the name of Trimerica Mortgage Corporation dba Avaris Capital contradicts the assignment submitted by the plaintiff and further contradicts and disputes the plaintiff’s allegations of standing and real party in interest;

f. the plaintiff’s factual claims in its amended complaint that the “Plaintiff owns and holds the Note and Mortgage” is directly contradicted and disputed by the plaintiff’s admissions in its amended complaint that the “plaintiff is not presently in possession of the original note and mortgage”; and

g. the January 30, 2006 assignment from an unrelated entity (from MERS as owner in “c/o Wells Fargo Bank, N.A.”) attached to the Plaintiff’s amended complaint presents issues of material fact in dispute and such assignment is legally defective to transfer ownership or assignment of the subject note or mortgage to the plaintiff.

a. the December 19, 2005 notice fails to specify the action required by me to cure the default within 30 days which was to pay the unpaid amounts due as of the date of the notice;

b. instead, the December 19, 2005 notice demands that I pay by January 18, 2006, additional money in the sum of $455.58 (to cover my January 2006 mortgage payment not yet due) to cure;

c. the notice misinforms me that I can bring a court action to refute the existence of a default when paragraph 22 of my mortgage says that I am entitled to a notice telling me that I have the right to assert the non-existence of a default in the foreclosure proceeding.

The defendant has presented a dispute of fact based on the plaintiff’s own pleadings and

documents filed in this action that the lack of a timely assignment of the mortgage that predates

the commencement of this foreclosure action renders the plaintiff’s complaint fatally defective

and leaves the plaintiff without standing or real-party in interest status to pursue this foreclosure

and also leaves this court without subject matter jurisdiction.

FAILURE OF CONTRACTUAL CONDITION PRECEDENT–NO NOTICE OF DEFAULT

16. The December 19, 2005 notice attached to the plaintiff’s filings fails to meet the

requirements of paragraph 22 of the mortgage because the notice fails to specify the action

required to cure the default within 30 days which was to pay the unpaid amounts due as of the

date of the notice. Instead, the December 19, 2005 notice erroneously demands that in order for

the defendant to cure the default and avoid the acceleration that she all monies due through

December, 2005 plus additional money not yet due in the sum of $455.58 to cover an anticipated

January 2006 mortgage payment.

17. Another issue of material fact is clearly in dispute as to whether the plaintiff’s

December 19, 2005 notice of default fails to comply with the mortgage because said notice

misinforms the defendant that she can bring a court action to refute the existence of a default

when paragraph 22 of the subject mortgage clearly provides that the plaintiff must provide

defendant with a notice advising her that she has the right to assert the non-existence of a default

in the foreclosure proceeding.

FAILURE OF 12 USC 1701x(c)(5) PRE FORECLOSURE HOMEOWNERSHIP COUNSELING NOTICE

18. Defendant asserts in her affirmative defenses that Plaintiff failed to comply with the

preforeclosure prevention notice requirement imposed by the National Housing Act, 12 U.S.C.

1701x(c)(5) which requires the plaintiff and all private lenders servicing non-federally insured

home loans to advise borrowers of the home ownership counseling the Plaintiff provides.

19. The Plaintiff failed to refute or otherwise resolve this disputed issue of material fact

in any papers or affidavits filed with this court.

20. 12 USC 1701x(c)(5) imposes a specific statutory obligation on all creditors across the

United States who service conventional loans, (non federally-insured home loans) that requires the

creditor to send a specific notice about access and availability of homeownership counseling to defaulting

homeowners within 45 days of a home loan payment default. The creditor is obliged to advise the

homeowner of any homeownership counseling offered by the servicer of the loan and/or information

about how to access HUD homeownership counseling.

21. The issue before the court in this action on plaintiff’s motion for summary judgment is

whether the creditor’s failure to comply with the federal statutory notice obligation before instituting this

foreclosure action can be grounds for the court to equitably deny the lender the remedy of a foreclosure.

22. 12 USC 1701x(c)(5) was enacted 21 years ago as part of the Housing and Community

Development Act of 1987. This statute was recently extended to require creditors to send another very

specific pre-foreclosure notice directed to homeowners in the military service of this country.

23. In this action, the relevant part of the federal statute provides:

12 USC 1701x. Assistance with respect to housing for low-and moderate income families

(c)(5): Notification of availability of homeownership counseling.

(A) Notification of availability of homeownership counseling.

(i) Requirement. Except as provided in subparagraph C, the creditor of a loan…shall provide notice under clause (ii) to (I) any eligible homeowner who fails to pay any amount by the date the amount is due under a home loan,…

(ii) Content. Notification under this subparagraph shall—

(I) notify the homeowner…of the availability of any homeownership counseling offered by the creditor…;

(III) notify the homeowner…of the availability of homeownershipcounseling provided by nonprofit organizations approved bythe Secretary and experienced in the provision of homeownership counseling, or provide the toll-freetelephone number described in subparagraph (D)(i);…

(B) Deadline for notification. The notification required in subparagraph (A) shall be made—

(i) in a manner approved by the Secretary; and

(ii) before the expiration of the 45-day period beginning on the date on Which the failure referred to in such subparagraph occurs.

(6) Definitions. For purposes of this subsection:

(A) The term “creditor” means a person or entity that is servicing a home loan on behalf of itself or another person or entity.

(B) The term “eligible homeowner” means a homeowner eligible for counseling under paragraph 4.

(C) The term “home loan” means a loan secured by a mortgage or lien on residential property.

(D) The term “homeowner” means a person who is obligated under a home loan.

(E) The term “residential property” means a 1-family residence,…

(7) Regulations. The Secretary shall issue any regulations that are necessary to carry out this subsection.

Under the terms of the statute, an “eligible homeowner” is one who is eligible for counseling as follows:

12 USC 1701x(c)(4) Eligibility for counseling. A homeowner shall be eligible for homeownership counseling under this subsection if—

(A) the home is secured by property that is the principal residence…of the homeowner;

(B) the home is not assisted under title V of the Housing Act of 1949; and (emphasis added)

(C) the homeowner is, or is expected to be, unable to make payments, correct a home loan delinquency within a reasonable time, or resume full home loan payments due to a reduction in the income of the homeowner because of—

(i) an involuntary loss of, or reduction in, the employment of the homeowner, the self-employment of the homeowner, or income from the pursuit of the occupation of the homeowner; or

(ii) any similar loss or reduction experienced by any person who contributes to the income of the homeowner.

24. The secretary of HUD, in a question and answer supplement “ published in order to respond

to creditor inquiries and to clarify creditor responsibilities” under the statute. 55 FR 2416 (01/24/1990)

states: “We note that if a creditor’s compliance…is challenged in court, the ultimate determination of the

adequacy of the creditor’s notification and the legal consequences of any noncompliance will be made

by the court.” (emphasis added)

The question and answer supplement advises creditors that:

1. The “notification requirement applies to all home loans except those assisted by the Farmers Home Administration…Thus, both conventional mortgages and loans, and those insured by HUD or guaranteed by the Department of Veterans Affairs, are subject to section 169.” (Section 169 is a reference to the section of the Housing and Community Development Act that enacted 12 USC 1701x(c)(5))

2. “[S]ince the purpose of the notice is to help the homeowner avert foreclosure, it should be sent soon enough to enable the homeowner to benefit from the counseling. HUD recommends that the notice be included in the creditor’s first communication with the homeowner regarding the delinquency.”

3. “A notice must be sent to every homeowner every time the homeowner becomes delinquent. If the homeowner brings the loan current and becomes delinquent again, another notice must be sent.”

4. “The notice must contain information on any counseling provided by the creditor and either the name, address and telephone number of the HUD-approved counseling agencies near the homeowner or a cost-free telephone number at the creditor’s office where the homeowner can obtain this information…”

5. HUD does not supply a form. “It is HUD’s view that sufficient information has been provided on the section 169 notice requirement to enable creditors to prepare the notice.

6. “Creditors may prefer to send the notice to all delinquent homeowners, rather than attempt to

determine the cause of each delinquency.”

7. “The notice is not required (on) property sold under a land sales contract…until the contract is completed…”

8. “The statute does not require any creditor to provide counseling.”

9. If a creditor does provide homeownership counseling, the creditor still has to “notify the delinquent homeowner of the availability of homeownership counseling by HUD-approved counselors or by the Department of Veterans Affairs…”

25. HUD published an advisory on the notice requirement of the statute which states: 54 “[T]he

notice requirements …apply virtually to all mortgagees…” and that “noncompliance with the law’s

requirements could be an actionable event that could affect a mortgagee’s ability to carry out foreclosure

in a timely manner…HUD regards the obligations imposed on creditors by the new law as self-executing:

that is, the law speaks directly to creditors, imposing and obligation upon any and all creditors to notify

any eligible homeowner counseling, whenever a home loan is “delinquent”. 54 Fed. Reg. 20964-65 (May

15, 1989)

26. The record in this action fails to establish that Plaintiff has given the required pre-foreclosure

counseling notice within the required 45 days from the failure to pay. Whether Defendant received the

12 USC 1701x(c)(5) preforeclosure counseling notice raises a factual dispute based on defendant’s

equitable defenses sufficient to deny Plaintiff’s Motion for Summary Judgment.

27. In a Florida mortgage foreclosure action in which a borrower similarly argued that the

Plaintiff failed to comply with a federally-mandated notice provision, the court denied the Plaintiff’s

motion for judgment of foreclosure based on Plaintiff’s failure to provide the required notice to borrower.

In U.S. v. Trimble, 86 F.R.D. 435 (S.D. Fla. 1980), the court held that the failure of the mortgagee to

comply with the notice requirement contained in the federal regulation is a valid defense to a mortgage

foreclosure action. Trimble dealt with a Farmers Home Administration loan, but the holding of that case

is premised on the same principle-- compliance with applicable federal laws can be upheld as equitable

defense to deny a creditor the judicial remedy of foreclosure. Defendant has properly raised an equitable

defense to the plaintiff’s claim in this action.

TRUTH-IN-LENDING VIOLATIONS

28. The Plaintiff does not dispute that for purposes of the defendant’s affirmative

defenses that it is a holder-in-due course and therefore subject to all claims Defendant has

against the Plaintiff’s predecessor in interest involving the subject transaction;

29. The defendant asserts that the plaintiff engaged in unfair and/or deceptive acts or

practices in violation of the federal Truth In Lending Act (TILA), 15 U.S.C. 1601, et. seq., and

its implementing Regulation Z, 12 C.F.R. Part 226 which gives the Defendant a continuing right

to rescind the subject mortgage which right Defendant exercised and Defendant confirmed the

exercise of this right by sending a rescission letter to Plaintiff and to all other requisite entities,

These material facts the plaintiff does not dispute.

30. The defendant asserts and the plaintiff does not dispute that it materially failed to

comply with TILA by, among other things, understating the Annual Percentage Rate (APR) by

more than the allowed .125%. 15 U.S.C. 1601.

31. The defendant’s assertion that the plaintiff failed to materially comply with TILA is

based on the “Federal Truth-In-Lending Disclosure Statement” involved in the subject loan

transaction which discloses an APR of 9.573%. The actual APR of the subject variable rate loan

is more than .125% higher than the disclosed rate because the overshadowing violation set up in

the defendant’s affirmative defenses and discussed below, by definition renders the disclosures

of the APR on the HUD-1 inaccurate and beyond the allowable tolerances of TILA.

32. The defendant further asserts that plaintiff materially failed to comply with TILA by

not providing the Defendant with a handbook explaining the features of adjustable rate

mortgages (ARMs) as required by law. 15 U.S.C. 1601.

33. TILA requires certain special information be provided and disclosed to borrowers

when an interest rate is an ARM, including a booklet titled “Consumer Handbook on Adjustable

Rate Mortgages,” or a suitable substitute. Plaintiff failed to provide or disclose to defendant the

aforementioned handbook and plaintiff does not dispute this fact.

34. The defendant asserts that the plaintiff failed to comply with its legal obligation to

terminate any security interest in the Defendant’s residence on account of the rescission which

occurred in a timely manner and, as a result of said rescission, the Plaintiff has no lawful right to

pursue the equitable remedy of foreclosure.

35. The ARM booklet is a material disclosure which triggers rescission rights in the

borrower when not provided and the failure to give an ARM booklet is a material violation of

TILA. See: note 48 of Section 226.23 of Regulation Z

36. Adjustable rate mortgages (ARMs), secured by the borrower’s principal dwelling

with a maturity longer than one year, are required to be disclosed with additional information. To

simplify disclosure requirements for variable rate loans, creditors may disclose any variable rate

transaction applying the ARMs disclosure rule. However, the reverse is not allowed. Reg. Z. §

226.18(f); 52 Fed. Reg. 48665 (Dec. 24, 1987)….Failure to disclose properly and accurately the

requirements of variable rate loans entitles the consumer statutory and actual damages and also

rescission right. In re Fidler, 210 B.R. 411 (D. Mass. 1997).

OBJECTION TO ATTORNEY FEES AND COSTS

37. Plaintiff seeks an award of attorney’s fees pursuant to a contractual provision

contained in the mortgage, which is the subject of this foreclosure action against Defendant.

However, plaintiff’s counsel’s affidavit fails to specify that he performed the services and also

bases his affidavit on the purported records of some other attorney.

38. In effect, the plaintiff’s attorney has taken away from the court its obligation to

evaluate and determine the reasonableness of the fee and the basis of the charge and asks the

court to rely on the plaintiff’s version of reasonableness based on inadmissible hearsay.

39. The entire affidavit is deficient as to each and every entry for usurping the court’s

power to determine a proper attorney’s fee award.

40. Plaintiff’s counsel fails to specify whether and to what extent or amount the plaintiff

actually is contractually obligated to pay its counsel for an attorney’s fee in pursuing this

foreclosure and the plaintiff fails to put any documents or other evidence before the court upon

which any determination can be made in this regard.

41. The contractual provision in the mortgage which requires the Defendant to pay

Plaintiff a attorney’s fee upon default is an indemnification agreement and the Plaintiff may

recover a reasonable fee or the amount the lender must actually pay the attorney whichever is

lower. See Dunn v. Sentry, 462 So.2d 107, 108 (Fla. 5th DCA 1985); Jemco, Inc. v. UPS, Inc.,

400 So.2d 499, 502 (Fla. 3rd DCA 1981), as cited in Wayne v. Krassner, 6 Fla. Weekly Supp.

534 (11th Cir. 1999).

42. Florida has adopted the federal lodestar method for computing reasonable attorney

fees. See Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985). In so

doing, the Florida Supreme Court set out specific guidelines this Court must apply when

computing reasonable attorney fees. These guidelines incorporate the requirements of Rule 4-1.5

of the Rules Regulating The Florida Bar. See Morgan v. South Atlantic Production Credit

Association, 528 So.2d 491, 492 (Fla. 1st DCA 1988). Additionally, Florida Courts have

emphasized the importance of record keeping for legal services performed, especially when a

party other than the client may have to pay the attorney’s fee. See Rowe, 472 So.2d at 1150.

Application of the Rowe criteria requires, among other things, determining the hours reasonable

expended by the attorney, based upon a review of the attorney’s time records. Rowe at 1150.

“Hours reasonable expended” can mean the number of hours other attorneys in the community

would expend for a similar dispute and still comport with Rowe. See In Re Estate of Platt, 586

So.2d 328, 333 (Fla. 1991).

43. Plaintiff’s attorney has failed to establish the number of hours other attorneys in the

community would expend on a similar foreclosure action. While the plaintiff’s counsel’s manner

of presenting the plaintiff’s claim to an attorney’s fee may be efficient for Plaintiff’s attorney,

this approach is so vague as to deny Defendant and this Court the ability to determine the

reasonableness of the fee the Plaintiff seeks, which is an obligation Rose, mandates in setting

reasonable attorney’s fees. See Rowe, 472 So.2d at 1150. In addition the failure of the

plaintiff’s attorneys to document the “uncontested” work performed should result in the Court

lowering the fee award. See Flamingo v. Qualls, 667 So.2d 363, 364 (Fla. 1st DCA 1995).

44. An award of attorney’s fees based solely on an affidavit or testimony of the attorney

seeking the fee, and over a party’s objection is improper and an abuse of discretion unless there

has been a stipulation. See Morgan v. South Atlantic Production Credit Association, 528 So.2d

491, 492 (Fla. 1st DCA 1988); Geraci v. Kozloski, 377 So.2d 811, 812 (Fla. 4th DCA 1979).

45. Because Defendant objects to the claim of attorney time expended and challenges the

reasonableness of the fee as submitted in the Plaintiffs affidavits an evidentiary hearing on the

issue is required. See Morgan, 528 So.2d at 492-93.

46. Defendant likewise has no way of assessing if some of the fees sought for the

contested portion of this action should be off-set by the fees Plaintiff seeks for the uncontested

portion. Geraci, 377 So.2d at 812.

47. In addition, in this case Plaintiff has filed a supporting affidavit from a third

attorney who practices in Broward County, Florida that fails to meet the requirements to support

the plaintiff’s fee demand. The attorney’s affidavit does not indicate that he reviewed the files of

the plaintiff’s attorney in this foreclosure action, but only that he has reviewed some records of

the files of the plaintiff’s law firm. There is no claim by the attorney that he has personally

reviewed the actual file at issue. The attorney does not state that he is familiar with the fees

customarily charged by attorneys for similar legal matters in this county. The attorney, in

summary fashion, advises the court that the hours demanded by plaintiff’s counsel is reasonable

“in such cases” and further asks the court to blindly accept the fee.

48. Defendant objects to the attorney’s fees and costs requested by the plaintiff in this

foreclosure action and asks the court to deny same on the basis of the lack of an adequate record

to support such award.

PLAINTIFF’S AFFIDAVITS ARE NOT ADMISSIBLE

49. Supporting affidavits must be made on personal knowledge. "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." Pawlik v. Barnett Bank of Columbia County,

528 So. 2d 965, 966 (Fla. 1st DCA 1988). See also Thompson v. Citizens National Bank of

Leesburg, Florida, 433 So. 2d 32 (Fla. 5th DCA 1983) (employee of the lender’s predecessor in

interest, the FDIC, who claimed to be in custody of the bank’s business records could not state

he had personal knowledge of its predecessor’s records which were also not kept under his

supervision and control); See also In re: Stewart 391 B.R. 327 (Bankr. E.D. La. 2008) (judgment

for debtor based upon Wells Fargo’s failure to reconcile its records and inherent failures in its

records administration)

Wherefore, Defendant believes she has shown the court that material facts are in genuine

dispute as to whether the plaintiff comes to court entitled to receive equitable relief in the form of a

foreclosure. Because the Plaintiff has not sustained its burden or its entitlement to a foreclosure,

summary judgment should be denied. Warring v. Winn-Dixie Stores, Inc ., 105 So 2d. 915 (Fla 3rd

D.C.A. 1958).

CERTIFICATE OF SERVICE

The undersigned certifies that a true copy of this document has been hand delivered on this day 5thd day of November, 2009 to: Michael K. Winston, Carlton Fields, P.A. ,CityPlace Towers, 525 Okeechobee Blvd. Suite 1200, West Palm Beach, Fl. 33401Fax: 561 659-7368

Donna S. GlickLaw Offices of Davd J. Stern, P.A.Attorney for Plaintiff900 South Pine Island Road, Suite 400Plantation, Fl. 33324-3920

Fax: 954 233-8577

JACKSONVILLE AREA LEGAL AID, INC.,

_____________________________________April Carrie Charney, EsquireFla. Bar. No.: 310425126 W. Adams StreetJacksonville, Florida 33202Telephone: (904) 356-8371, ext. 373Facsimile: (904) 224-1587april.charney@jaxlegalaid.orgAttorneys for Separate Defendant