The premise behind a Summary Judgment (SJ) is that the facts are undisputed, and that the only remaining question is one of law. When a plaintiff files a motion for SJ they are going for the quick victory with minimal costs. Defeat the SJ and the plaintiff is in for a long war with greatly increased costs.
The strategy for defeating the plaintiffs SJ motion is to strike the evidence the plaintiff attaches to his motion to show that there are no facts in dispute. If you succeed in doing this, then the facts are in dispute and the matter is not ripe for SJ.
The evidence attached to the SJ Motion must be supported by notarized affidavits. If the notarized affidavits are missing or defective, the evidence can be struck by a Motion to Strike by the defendant. Generally there will be a notarized affidavit by a custodian or assistant custodian of records (Affiant) personally attesting to the methods and business practices of the plaintiff, stating that the affiant has personally inspected the business records for the defendants account, and stating the amount due. (see the attached Amex affidavit filed in a Florida lawsuit).
Each state has their own notarization laws. If the case was filed in your state and the affidavit was notarized in another state, you must review your states notarization laws to see if the out of State notarization complies with your states requirements. If it does not, you can strike the affidavit by a motion to strike.
FLORIDA has unique notarization requirements and unless the out of state notarization uses the Florida notarization form, it will not comply with Florida’s law. (see the attached Florida case documents). I have yet to see an out of state notarization use the required Florida form in a Florida SJ motion.
Florida’s notarization statute ( Chapter X, 117.05) requires the notary to state that either the affiant is personally known to the notary or that the notary examined the affiants ID to confirm their identity and to list the ID that was examined. In the Amex affidavit the notary merely stated the affiant personally appeared.
Further examination of the Amex affidavit revealed the assistant custodian of records Hartje purported to be “attorney in fact.” “An attorney in fact” is someone authorized to perform a task under a power of attorney. A copy of the power of attorney she was operating under should have been attached. It was not. This raised another issue of fact. Any affidavit attached to a SJ motion under which someone claims to be acting as an “attorney in fact” can be attacked if the power of attorney is not also attached. The defendants motion to strike the affidavits should be submitted at the deadline for submission so that the plaintiff does not have an opportunity to correct any defective affidavit.
A copy of the credit card statements or the records of the defendants account should also be attached to the SJ motion in Florida. Under Florida Rules of Civil Procedure 1.510 these records must be sworn to or certified by a Notary. These records almost never are. However this objection should be made at the SJ motion hearing itself so the Plaintiffs don’t have a chance to correct this. Many states have similar laws regarding business records used in a summary judgment. Be sure to research the laws in your state.
This article was written by Robert Harmon. Mr. Harmon is lawyer who graduated from University Miami Law School. He serves as a Self Help Law consultant. His consulting services include informing clients how an attorney would approach and research a problem, giving them the most efficient search terms for use in internet research of the law, and reviewing the clients work product for concise and efficient presentation of their case. He can be reached through his website www.smallclaimscoach.org. This article was merely informational and is not intended as legal advice.
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