1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HANSEN REPORTING SERVICE ( 863 ) 382 - 3310 1 IN THE COUNTY COURT OF HIGHLANDS COUNTY, FLORIDA CLAIMS DIVISION CASE NO: 11000301SPS CAPITAL ONE BANK (USA) N.A., Plaintiff, vs. MOTIL, JAMES A., Defendant. ________________________________ TRANSCRIPT OF PROCEEDINGS DATE TAKEN: November 29, 2011 TIME: 9:30 A.M. - 10:37 A.M. PLACE: Highlands County Courthouse 430 South Commerce Avenue Sebring, Florida 33870 BEFORE: The Honorable Anthony L. Ritenour Circuit Judge This cause came on to be heard at the time and place aforesaid, when and where the following proceedings were reported by: Susan Rankine, Court Reporter Hansen Reporting Service 326 Lemon Avenue Sebring, Florida 33870
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Transcript of Hearing 29 Nov 2011 Attorney asks to be Surety for Client
A Florida attorney asked judge to make him responsible for his client's expenses if his client loses the case. The judge approved in spite of statutes and rules against it.
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IN THE COUNTY COURT OF HIGHLANDS COUNTY, FLORIDACLAIMS DIVISION
CASE NO: 11000301SPS
CAPITAL ONE BANK (USA) N.A.,
Plaintiff,
vs.
MOTIL, JAMES A.,
Defendant.________________________________
TRANSCRIPT OF PROCEEDINGS
DATE TAKEN: November 29, 2011
TIME: 9:30 A.M. - 10:37 A.M.
PLACE: Highlands County Courthouse430 South Commerce AvenueSebring, Florida 33870
BEFORE: The Honorable Anthony L. RitenourCircuit Judge
This cause came on to be heard at the time andplace aforesaid, when and where the followingproceedings were reported by:
Susan Rankine, Court ReporterHansen Reporting Service
326 Lemon AvenueSebring, Florida 33870
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APPEARANCES FOR THE PLAINTIFF(Via Telephone)
STANLEY ERSKINE, ESQUIREErskine & Fleisher
55 Weston Road, Suite 300Fort Lauderdale, Florida 33326
APPEARANCES FOR THE DEFENDANT
JAMES A. MOTIL, PRO SE
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(THEREUPON, the following proceedings were
had:)
THE COURT: Can you hear me?
MR. ERSKINE: Yes, Your Honor.
THE COURT: All right. Mr. Motil is -- is that
how you pronounce your name, Motil?
MR. MOTIL: Motil.
THE COURT: All right. Mr. Motil is present.
We have a whole slew of motions. A motion to quash,
motion to strike affidavit, motion to dismiss,
motion for leave to file third-party claim, motion
to dismiss for Plaintiff's failure to file
non-resident bond, motion to strike Defendant's
pleadings and discovery for ghost writing, motion to
strike Defendant's motion for leave to file a
third-party claim and for sanctions, motion to
determine confidentiality of court records and
motion to seal records. Does that sound like all of
them?
MR. ERSKINE: Sounds pretty close, Your Honor.
THE COURT: Okay. So based on that I assume
that most of these -- this is started by the Defense
filing motions and so it would seem appropriate for
him to go first. Is that your understanding,
Plaintiff?
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MR. ERSKINE: That's fine, Judge.
THE COURT: Okay.
MR. ERSKINE: Yes, Your Honor. I think he
should address the jurisdictional motions first
because, obviously, if I can't get past the
jurisdictional motions the rest of it really is a
nullity.
THE COURT: All right. Mr. Motil, which motion
of yours do you want to start with?
MR. MOTIL: I would like to make an objection
right at the moment for the fact that he is not the
attorney of record.
THE COURT: Who is not the attorney of record?
The guy on the phone?
MR. MOTIL: Mr. Erskine. Fleisher is the
attorney of record.
THE COURT: Who do you think is on the phone?
MR. MOTIL: Erskine. Isn't that what he said?
THE COURT: I thought you just said Erskine &
Fleisher is the attorney of the record and --
MR. MOTIL: No.
THE COURT: -- Mr. Erskine is on the phone?
MR. MOTIL: No. Mr. Fleisher is attorney of
record. Erskine is another attorney within that
particular framework, but he's not the attorney of
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record.
THE COURT: Okay. So you're saying he's an
attorney with that firm but he's not the one that
signed the initial paperwork?
MR. MOTIL: He didn't ask for leave to become a
new attorney for the record.
THE COURT: So you're objecting to -- okay.
Who is on the phone now?
MR. ERSKINE: Stanley Erskine, Your Honor.
THE COURT: Stanley Erskine of what law firm?
Erskine & Fleisher, right?
MR. ERSKINE: That's correct, Your Honor.
THE COURT: Okay. So I don't understand what
your objection is then.
MR. MOTIL: He failed to file a notice of
appearance. I've got some paperwork that he has
actually done himself when he's being sued, when
they themselves are being sued. They know how to
file a notice of appearance when they decide --
THE COURT: He's being sued? Who is he being
sued by?
MR. MOTIL: In this particular case Stephen J.
Pincus was the plaintiff and the Law Office of
Erskine & Fleisher was the defendant and they filed
a notice of appearance of substitution of counsel.
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THE COURT: What does that have to do with
this?
MR. MOTIL: He's not the -- Erskine is not the
attorney of record. Fleisher is the attorney of
record. They didn't file a substitution of counsel.
THE COURT: Substitution of -- okay. Do you
want to address that?
MR. ERSKINE: Sure, Judge. Mr. Motil
represents a new class of pro se defendants. Quite
frankly, Judge, we did a search on the Internet and
he's used this -- he's attempted to use this in
another case where he has been sued in a foreclosure
matter. And he's misreading the law in this arena
and it's squarely against Mr. Motil's position.
He has alluded to one particular case and he
has misrepresented the law in that case before the
Court and the pleadings. The case is referred to as
Pasco County versus Quail Hollow. In that
particular case, a Second DCA case, the Court goes
into the reasoning behind substitution of counsel
and notice of substitute counsel and notice of
appearance of additional counsel under the Rules of
Judicial Administration.
You're quite right, Judge, in your observation.
The attorney -- if an attorney files an appearance
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in a case and is not affiliated with the law firm,
the law is clear that a substitution of counsel
should be filed either to replace that prior counsel
or a notice of appearance of additional counsel to
show that that person may not be an attorney of
record but a co-counsel.
As aptly pointed out by this Court is that Mr.
Fleisher and myself are both partners in the same
law firm, we represent the same parties, the
representations in the case have been strictly
between myself and Mr. Fleisher and, therefore,
there's been no change of law firm and as a result
of which, since we're affiliated, we can both come
into the case at will. Notwithstanding, Judge, I
did file another notice of appearance to satisfy Mr.
Motil and Mr. Fleisher signed it, as I, which has
been filed in the court record to readopt all
pleadings and that either one of us could be
involved in the case, because I knew this would
happen.
THE COURT: Okay. All right. Well, I'll
overrule your objection.
Go ahead, Mr. Motil, with your motions. If you
want to go by when they were filed you had a
Defendant's motion to dismiss that was filed
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September the 28th.
MR. MOTIL: Okay. I would like to point out
some initial facts first. My affidavits are
unrefuted. And to get started, their statement of
claim, which is their original complaint, there are
no exhibits referenced. And you can only look at
the four corners of their complaint. They are not
using my legal name.
THE COURT: But you're going by -- you're
arguing your motion to dismiss now?
MR. ERSKINE: Judge, I think we may want to
address his motion to quash service. It was filed
the same date, along with his motion to file a cost
bond.
THE COURT: Let me find that. Motion to quash
service you said? Let's see.
MR. ERSKINE: Motion to quash defective service
of process filed on the 28th.
THE COURT: I know I had read that off earlier,
but she didn't put a sticky on that one. There's a
motion to dismiss, motion to strike affidavit.
MR. MOTIL: Motion to quash.
THE COURT: That was filed on the same date you
guys are saying?
MR. MOTIL: Yes.
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MR. ERSKINE: Yes, sir.
THE COURT: Okay. I see --
MR. MOTIL: It's only like one and a half
pages.
THE COURT: All right. Go ahead. Address your
motion to squash, I guess, because that would be the
initial thing.
MR. MOTIL: Okay. Comes now the Defendant in
error, James A. Motil, Jr., pursuant to Florida
Rules of Civil Procedure, Rule 1.070 and Florida
Statutes 48.031, Paragraph 5, and 55.203 to move
this Court to quash the service of process upon him.
It is defective for the following reasons: That
someone has failed to state the location where it
was dated at, the person serving the summons failed
to accurately record the time. The apparent time
handwritten on my copy of the summons is 1:10 b.m.
To enforce the final judgment a judgment
creditor needs an original lien certificate pursuant
to Florida Statute 55.203 and the original judgment
lien certificate must include, A, the legal name of
each judgment debtor, the legal name of judgment
creditor, and record a legal entity, the registered
name and document file number as shown in the
records of the Department of State. My legal name
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does not appear in the statement of claim, nor on
the summons. The only way to legally change this is
for the Plaintiff to amend his complaint, the person
serve me with a copy of the amended complaint.
It is well settled that a judgment entered
without due service of process is void. See also
Jose E. Vidal, Appellate, v. Sun Trust, Warner J.
Wherefore I move the Court to quash service of
process upon me and grant Plaintiff an extension of
time to file an amended statement of claim and serve
a copy upon me for findings of fact and inclusions
of law and for such other further and different
relief as the Court deems appropriate.
THE COURT: Let me try to find the summons
here, now that I found your motion. Are you going
to respond to that?
MR. ERSKINE: Sure, Judge. First of all, Rule
1.070 in his motion is inapplicable to the case at
bar because this is a small claims matter and I
believe under Rule 7.020 of the Small Claims Rules
it's not included and, as such, it's not applicable.
As far as Florida Statute 55.203 regarding a
final judgment, I have no idea how that is
applicable to the case and have no argument because
it deals with a judgment creditor with a lien.
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As far as Florida Statute 48.031(5), that deals
with return of service. And if Mr. Motil can be
kind enough to explain to both the Court and I how
his return does not comport with that particular
specific section, I don't understand, Judge, because
apparently pursuant to the return served on him,
which is an exhibit to his motion, the process
server complied with the statute.
THE COURT: It says the process -- I'm looking
at the service. It says, "I, Kenneth Rutledge,
today served James A. Motil at 1:19 p.m." What I'm
seeing. I'm not sure where you got 1:10 b.m., but
I'm reading --
MR. MOTIL: Judge, on my copy, it's attached to
it, it's dated 9/15/11 at 1:10 b.m., which is a
technicality, but still where it says dated at
there's nothing there. It didn't say where it was
served or anything. It's just technicalities.
THE COURT: So are you saying you are
withdrawing your motion then?
MR. MOTIL: No, I'm not withdrawing it. It's
just technicalities. I pointed them out.
THE COURT: Okay. All right. Well, yeah, I'm
not understanding where you're seeing it. I'm
looking at the original certificate of service and
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it says -- I don't know if you printed out two of
them, but the one in the file shows 1:10 -- well,
let's see.
MR. ERSKINE: Judge, I think the issue here is
whether or not the Defendant received the summons.
I'm assuming based upon his representation he
received the summons and he's addressing a
hypertechnical defect, I'm assuming. And if that's
in fact the case, Judge, the case law is clear that
hypertechnical defects in the summons will not
sustain a quashing the summons. I have the case of
American Hospital versus Nateman. I believe the
citation is 498 So. 2d 444.
So I'm not sure if he's talking about the
return of service or whether he's talking the actual
summons served on him, but in either event he was
served. He doesn't deny that.
THE COURT: All right. I'm going to deny that
motion. I'm really not sure what you're getting at
either. So let's move on to -- so I'm going to deny
the motion to quash. Service looks fine. So then
we've got to go to the motion to dismiss, I guess.
MR. ERSKINE: No, Judge. I think it's the cost
bond. It's another jurisdictional motion.
THE COURT: Let me find that one. Let's see.
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Notice of Plaintiff's failure to post non-resident
bond.
MR. ERSKINE: Right. We filed a reply, Judge.
We never received the original notice to file a cost
bond, which he reportedly filed on September 28th.
And when he sent us that notice of noncompliance,
which was on about I think the last week in October,
we filed a reply indicating we had not received it
and we did in fact file a cost bond.
THE COURT: And where is your cost bond? When
did you file that?
MR. ERSKINE: It should be around November 3rd
we sent it to the clerk.
THE COURT: Let me look around November 3rd.
There's a cancellation of hearing.
MR. ERSKINE: Right. We sent a check for
$111.50 on it looks like November the 3rd, Judge.
THE COURT: Well, as soon as I can find it if
that's been done then that takes care of that issue.
I just don't see it yet.
Mr. Motil, have you seen that he's filed a cost
bond now?
MR. MOTIL: Actually, I have a response to that
also.
THE COURT: Well, answer my question. Have you
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seen whether or not he has filed?
MR. MOTIL: I've seen that he filed a notice of
filing a non-resident cash bond, yes.
THE COURT: Well, then, if he's done that,
doesn't that get rid of that issue?
MR. MOTIL: No, it does not.
THE COURT: Why does it not?
MR. MOTIL: Because, as he stated, Plaintiff
claims that they did not receive this notice, which
is an unverified statement. This is something an
attorney should know when working for an
out-of-state client.
THE COURT: But it doesn't matter. If he's
already filed it, it now doesn't matter.
MR. MOTIL: I'm getting to the point. Just
give me just a little bit of leeway.
THE COURT: No, no, no, no. You need to answer
my questions. This is my courtroom. I run it. My
issue is if you said he didn't file a cost bond but
now he has, what else is there in regards to that
issue?
MR. MOTIL: Okay. They claim they filed a cost
bond.
THE COURT: Well, you just admitted that he has
now.
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MR. MOTIL: Okay. Then -- okay. Hold on.
THE COURT: I haven't found it yet, but you
said he did. Or you said he filed a notice of it.
MR. MOTIL: A notice of it, exactly.
THE COURT: Let's see. You said what date?
November 3rd?
MR. ERSKINE: Yes, sir. I'm going to look up
the court docket and see if it's in there.
THE COURT: I'm flipping through it. Go ahead,
Mr. Motil.
MR. MOTIL: Okay. On the purported bond it
does not say who is the principal or who is the
surety. Can either one of you tell me who those
are? According to Form 1.960, it lists a surety and
a principal and that's not in his notice of filing.
There's a notice of a filing. There's no bond
attached.
THE COURT: Motion to dismiss -- well, so far I
still haven't even seen it, so I can't respond to
that. I'm just going to have to check with the
clerk on that. Okay? If he has filed a proper
bond, then that would be denied. If he hasn't,
then --
MR. MOTIL: I can show you.
MR. ERSKINE: I didn't file a cash bond, Judge.
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THE COURT: Okay. Well, I'm not -- I'm just
not finding it. She's got stickies -- there is so
much stuff in here that's got stickies on it. Let's
see. Defendant's response to Plaintiff's --
Defendant's amended motion for leave to file. Okay.
Here's a reply to Defendant's motion to dismiss, a
failure to file -- okay.
MR. MOTIL: It should be right after that.
MR. ERSKINE: It's on the docket, Judge. It's
on the docket on 11/7.
THE COURT: Okay.
MR. ERSKINE: And it also says on the left on
the docket "Funds deposited in the registry of the
court."
THE COURT: Notice of cancelation of hearing.
You guys just have filed too much stuff right around
the same time period, which is --
MR. ERSKINE: Judge, you can also enter an
order finding me to be responsible for the amount of
money in any event and I can be held responsible,
which is fine with my firm.
MR. MOTIL: So who's the principal and who's
the surety?
THE COURT: Well, I see a notice that he's done
it. I still don't -- okay. All right. Well, if he
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has done it, he's okay. If he hasn't done it, he's
not. And it looks -- I'm going to have to check
with the clerk and see whether or not he has filed
the appropriate bond. He has in here a reply that
he has since filed a cost bond in order to address
the issue at hand. Okay?
MR. MOTIL: Well, he didn't.
THE COURT: Well, I don't know. You're saying
he did, but you're now questioning the wording on
it. You're not saying he didn't. You're saying you
don't like the wording on it.
MR. MOTIL: No. I'm saying that just putting a
100 bucks in the court's coffers is not a bond. I
have a Supreme Court official form right here and I
can hand it to you to go by. This is what the form
is supposed to look like.
THE COURT: Well, you can pass that up and I
will check with the clerk's office when we leave the
courtroom today. Because I'm just going by here it
says he's filed this and -- all right. Yes, you
handed me general bond forms for Florida Rules of
Civil Procedure.
And your response was you have already done
this, correct?
MR. ERSKINE: Correct, Judge.
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THE COURT: And I see the reply. I'm just
going to have to see -- for some reason I'm not
showing a sticky as to any monies that were put in
or anything like that.
MR. ERSKINE: Just so the Court is aware, I
pulled up the docket from the web right now, Judge,
and it says the clerk acknowledges receipt of the
money and the notice I just indicated on the 7th.
THE COURT: All right. So if it's been done,
it's done. If not, you would -- okay. Here we go.
Registry deposit. It's actually bond approval.
Okay. Notice of filing non-resident cash bond
pursuant to Florida Statute 57.011. It was back --
okay. All right. And then the clerk has
acknowledged -- the clerk approved it.
So, yes, Mr. Motil, on December -- or November
the 7th I show a registry deposit and that the clerk
has actually approved the bond.
MR. MOTIL: Okay. On that reported bond who is
the principal and who is the surety? In order for a
bond to be -- according to Florida Jurisprudence
states -- it's 0 So. 2d 171, form of good and
sufficient bond. It states, "A good and sufficient
bond is one with a principal and a surety company."
THE COURT: That would be a surety bond.
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MR. MOTIL: No. And it also states that no
attorney is allowed to become a surety on any bond
of a client in judicial proceedings. Again I ask
who is the principal and who is the surety? They
have still not answered that question. It's valid.
THE COURT: Do you want to respond to his
objection now?
MR. ERSKINE: Sure, Judge. Let's assume he's
correct and he moves to dismiss the action, which he
has, based upon that. We can -- this could be
circumvented very simply. This Court can hold me
responsible for all costs up to the amount of the
statutory requirement.
MR. MOTIL: According to Florida Statute 2011
452 --
MR. ERSKINE: What that would mean, Judge, is
that his position clearly is analogous -- would be
contrary to the statute. And let's assume his
position is correct. That would be diametrically
opposed to the responsibility enumerated under this
particular statute. Would this Court have the
ability to allow an attorney to act as a surety to
be responsible for the bond?
MR. MOTIL: Again --
MR. ERSKINE: It says so right in the -- it's
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in the cost bond statute you can hold me
responsible.
MR. MOTIL: Again, under Florida --
MR. ERSKINE: So whatever he has, unless it's a
specific statute, a case or whatever he's referring
to specifically construing 57.011 that says that an
attorney cannot be responsible, it's inapplicable.
THE COURT: What cost do you have that his $100
doesn't cover so far?
MR. MOTIL: I'm not arguing that point. I'm
arguing the technicalities of what he's doing.
THE COURT: Well, you have to answer my
question. You don't get to chose what you want to
argue. You've got to answer my question.
MR. MOTIL: His $100 cannot be paid by him.
It's got to be paid by the client, which would be --
MR. ERSKINE: It is paid by the -- I'm sorry.
MR. MOTIL: He just stated that he put the
money, that he personally put the money in the --
THE COURT: What cost do you have that is not
covered by the $100 that he has put in right now?
MR. MOTIL: I put in a couple of my own --
tons. I'm not prepared to answer that right now.
THE COURT: Okay. Then your objection is
overruled, because the whole idea of a cost bond is
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to cover the cost. If you don't have any costs and
he's already put in 103 bucks, you don't have --
you're forcing him to do a cost bond, which he has
done, but you haven't shown me that there's any
costs.
MR. MOTIL: But he hasn't because he has not
filed -- just because he threw 100 bucks in the
coffers is not specific as a bond. There's a form
for it. It's from the Florida Supreme Court --
THE COURT: There are cash bonds and surety
bonds.
MR. MOTIL: And it states every bond has a
principal, which is whoever the principal is, and
who the surety is.
THE COURT: And he's agreed to do that.
Overruled. Go ahead. What else do you want to
complain about? He's done a cash bond and what I'll
also say is based on his statement we'll hold him
responsible for any costs that you may have. But I
even asked you if you had any costs and you don't
have any it sounds like. So that's the whole reason
in putting up a cost bond, because that way if you
are the winning party they would cover your costs.
MR. MOTIL: In reference to that there's a
point to it. Because the Florida Statute 454.20,
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attorneys are not to be sureties. No attorney shall
be --
THE COURT: Okay. Well, I've already addressed
it. Once I've made a ruling you need to move on.
MR. MOTIL: But there's a reason for dismissal
--
THE COURT: Listen to me. Look at me. Look at
me. Look at me. When I make a ruling you don't
keep going on and on. Do you understand me?
MR. MOTIL: Yes, sir.
THE COURT: I don't know where else you've been
in a court, but let me explain something to you.
I've been allowing you to go on and I'm trying to
explain it to you. If you don't agree with what I
rule on, that's when you file an appeal, but once I
make a ruling you don't keep going down the same
road. Do you understand me?
MR. MOTIL: Yes, sir.
THE COURT: Okay. I've said that he has been
sufficient and they did a cash bond and if the cash
bond does not qualify for whatever reason the
attorney is personally liable for your costs. Move
on. Do you know what your next issue is?
MR. MOTIL: Motion to strike the affidavit --
THE COURT: Motion to strike affidavit of
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Tarnetta Mayfield.
MR. MOTIL: May I have a small break to go get
a drink of water? I'm parched.
THE COURT: That's fine. Hurry up.
(A short break was had.)
THE COURT: All right. Let me find it again.
It was Defendant's motion to -- no. Let me find it.
Motion to strike affidavit of Tarnetta Mayfield.
Okay. Why are you trying to -- let me try to find
the affidavit of Tarnetta Mayfield. Okay.
MR. ERSKINE: It's probably attached to the
complaint, the statement of claim, Your Honor.
THE COURT: I have it. Mr. Motil what is your
objection to this affidavit?
MR. MOTIL: First, it does not allege that
she's an employee or officer and that she's only
familiar with the manner and method of business
books and records, et cetera. The books are made by
an unnamed person. She only has personal knowledge
of this process. It's dated March 21st, 2011, which
is five months prior to the filing of the complaint,
13 days after the initial correspondence and 17 days
prior to the request for verification. Sounds a
little fishy. Her affidavit is hearsay and hearsay
is not admissible. She does not identify or certify
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any business record. It's not attached to it in any
way, shape or form.
Under Third American Jurisprudence So 2d, the
person with knowledge of facts asserted in an
affidavit is not presumed, but rather the court
should be shown how the affiant knew or could have
known such facts and if there's no evidence from
which an inference of personal knowledge can be
drawn, then it is presumed that such does not exist.
Person with personal knowledge Page 397 to 398.
Affidavits containing hearsay, legal conclusions and
irrelevant information are properly stricken without
an opportunity to amend as defects in the affidavits
are of substance and not form.
Again So 2d, 17 Amendment, Page 400. Before a
document may be admitted as a business record a
foundation for such admission must be laid. Section
90.803 Paragraph 6, Florida Statutes 2010 allows the
admission of records under regularly kept business
activity when the business record was made at or
near the time of matters reported and when the
business record is made by a person having personal
knowledge of the matters reported or when the
information supplied in the record is supplied by a
person with knowledge.
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Here none of the requirements for admission of
a business record are met. As noted, Ms. Mayfield
has alleged no personal knowledge as to the actual
preparation or maintenance of the specific documents
alleged by the Plaintiff. Further, Ms. Mayfield
made no attempt to admit the affidavit by
certification or declaration pursuant to Section
90.803 Paragraph 6-C, Florida Statutes. Because no
foundation has been laid and because the affiant has
no personal knowledge, admission of the affidavit
would be erroneous.
Now, I have another -- I actually have -- where
is it at? It's attached here somewhere. Another
affidavit that she put together for Capital One
regarding Thurston R. Mitchell where it's basically
a --
THE COURT: Who is Thurston R. Mitchell?
MR. MOTIL: It's just another case that she
filed an application against.
THE COURT: Well, let's worry about your case
and any appellate, you know, any decisions.
MR. MOTIL: Okay. We'll go to --
THE COURT: So your objection is that her --
I'm trying to look at your motion -- is that she
doesn't have personal knowledge, she's not a witness
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and she's not an officer or an employee.
MR. MOTIL: Yeah. Then an appeal from the
Circuit Court of Levy County, Judge Stanley H.
Griffis, III, stated in a case, Moshe Mazine and
Jaacove Bouskila vs. M&I Bank, it states quite
clearly, before a document may be admitted as a
business record a foundation for such admission must
be laid, Section 90.803 Florida Statutes 2010.
THE COURT: Why are you referring to business
records now? I thought you were attacking her
affidavit?
MR. MOTIL: Because her affidavit isn't a
business record. She supplied none of it. It's all
hearsay. Everything in her affidavit is hearsay at
best. It's not admissible in any way, shape or
form.
THE COURT: It's not admissible at what?
MR. MOTIL: In proving their case of cause of
action.
THE COURT: Okay. Do you want to respond to
that?
MR. ERSKINE: Judge, I think your observation
is clear the affidavit has been filed to show the
establishment of the debt. There's no pending
proceedings in which the affidavit is being used
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and, quite frankly, Mr. Motil has the opportunity if
he wishes at any other subsequent proceeding where
the affidavit is being used to of course move to
strike it for whatever basis he feels appropriate.
At this juncture, since there is no pending
proceeding using the affidavit, his motion really is
premature and frankly moot at this juncture.
THE COURT: Yeah. I'm a little bit -- see, if
we were at a trial, Mr. Motil, and they were trying
to introduce the affidavit at trial a lot of your
arguments would be justified because they cannot use
an affidavit at trial. Affidavits though can be
used in certain other hearings, so I'm not really
sure why you filed it at this time. For example, at
certain motion hearings affidavits are permitted
under the rules. So I'm really at a loss as to why
you're trying to strike it right now.
MR. MOTIL: I'm trying to strike it now because
that's their only so-called proof that I, James A.
Motil, Jr., owes the debt to Capital One.
THE COURT: Okay. Well -- all right.
MR. MOTIL: Which is my point for my motion to
dismiss. They've got a one-page document. On the
four corners of the document they have no proof.
There's no exhibits attached to it.
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THE COURT: We'll address your motion to strike
the affidavit. Well, your motion to dismiss was --
did we actually address that one yet?
MR. MOTIL: No, not yet.
MR. ERSKINE: No, Judge.
THE COURT: So we just had the motion to strike
affidavit. I'm not sure why -- I mean, I know why
you're saying you're striking it. She alleges
actually that she's an authorized agent. Does she
use the word "officer" or "employee"? No. She uses
the word "agent".
I'm at a loss. I'm not really understanding
what you're trying to strike or really why because
it's not being used at a trial. So at least at this
point it's a denial of that. All right. What is
your next motion?
MR. MOTIL: Okay. My motion --
MR. ERSKINE: Judge, what I believe he has left
is his motion to dismiss and his motion for leave to
file a third-party claim. And I think he just filed
another one to amend. He filed another one on the
7th of November to file an amended I guess
third-party claim and counterclaim. Those are the
three items left I see from the Defendant.
THE COURT: So the motion to dismiss is --
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let's see. You say Plaintiff's identity is vague.
Why are you saying it's vague?
MR. MOTIL: Because they said James A. Motil.
I'm not James A. Motil. If you Google that name
there's more than three of them. One lives in
Arizona. One lives in Cleveland. One of those is
actually my father. I'm James A. Motil, Jr.
Actually, James Angelo Motil, Jr. They are not
referring to me. They are referring to someone with
a name similar.
THE COURT: So are you saying you're not the
person --
MR. MOTIL: That's exactly what I'm saying.
That's exactly what I'm saying. I'm not James A.
Motil. I'm James Angelo Motil, Jr.
THE COURT: That would be --
MR. MOTIL: They are not referring to me
personally. I'm here only because -- had I looked
at the original summons and saw it was James A.
Motil I wouldn't even have signed it accepting it
because I'm not James A. Motil. I'm James Angelo
Motil, Jr. They are not suing me, James Angelo
Motil, Jr. They are suing James A. Motil.
MR. ERSKINE: Judge, may I voir dire the
Defendant so maybe we can get to the bottom of this?
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THE COURT: Sure.
VOIR DIRE EXAMINATION
BY MR. ERSKINE:
Q. Mr. Motil, are you not on the account with
Capital One?
THE COURT: Hold on. Hold on. Raise your
right hand.
MR. MOTIL: I will not be sworn in. I wasn't
prepared to be sworn in for anything. I object. I
wasn't given notice in time to prepare for anything
like this.
THE COURT: Okay. So you're telling me you're
not going to raise your right hand and be sworn in?
I'm just asking you. That's what you said.
MR. MOTIL: I will go ahead and swear, but I'm
objecting to it.
THE COURT: Let me ask you this. You don't
want to be sworn in?
MR. MOTIL: I don't have a problem being sworn
in. I just object to it.
THE COURT: In like three sentences you have
changed your mind. If you're going to object I
won't swear you in.
MR. MOTIL: Well, I'm going to object.
THE COURT: Okay. Then your motion is denied.
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MR. MOTIL: Okay.
THE COURT: Okay. Let's move on to something
else then if you're going to object and he's allowed
to voir dire you as to whether or not you're the
person you're claiming. If you want to object I
will allow you to object as this was not set for a
hearing for a trial, then we'll deny your motion.
It's as simple as that.
MR. MOTIL: And which motion was that?
THE COURT: Your motion to dismiss based on you
saying you're not the person he's looking for. If
you don't want to give testimony in regards to that
I'm not going to make you right now because it was
not a testimonial set hearing, so we'll deny your
motion.
MR. ERSKINE: Just for purposes of the record,
Your Honor, in small claims proceedings there's no