9/28/2010 10:20 AM Filed Lee County Clerk of Court IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT, IN AND FOR LEE COUNTY, FLORIDA CIVIL DIVISION HSBC BANK USA, NA AS TRUSTEE FOR WELLS FARGO ASSET SECURITIES CORPORATION, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-ARS Plaintiff, vs. CASE NO. 10-CA-50089 SCOTT SHINNEMAN, et al. Defendants. 1 MOTION TO STRIKE COMES NOW, the Defendants, SCOTT SHINNEMAN and SHINNEMAN SOUTH, LLC, and hereby moves this Court for an order striking Plaintiff's Affidavit of Amounts Due and Owing for failing to comply with the Florida Rules of Civil Procedure, and allege as grounds therefor: 1. On or about February 10,, 2010 Plaintiff filed their Motion for Summary Judgment. 2. In support thereof, Plaintiff attached an Affidavit of Amounts Due and Owing, sworn to by XEE MOUA, Vice President of Loan Documentation for WELLS FARGO BANK, NA. 3. Fla. R. Civ, Pro, 1.510(e) provides, in part, that “[s]wom or certified copies of all papers. or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” Failure to attach such papers is grounds for reversal of summary judgment decisions. See CSX Transp., Inc. v. Pasco County, 660 So. 2d 757 (Fla. 24 DCA 1995). 4, In Plaintiff's Affidavit XEE MOULA teferred to books, records, and documents kept by WELLS FARGO BANK, N.A. which allegedly concemed the transaction referred to in the Complaint against the Defendant. Nevertheless, XEE MOULA has not attached any of these books, records or documents. This failure to do so is a violation of Fla. R. Civ. Pro, 1.510(¢). 5. Furthermore, Florida Statue §90.901 (1989) states, in pertinent part, that “[aJuthentication or identification of evidence is required as a condition precedent to its admissibility.” The failure to authenticate documents referred to in affidavits renders the affiant incompetent to testify as to the matters referred to in the affidavit. See Fla. R. Civ. Pro. 1.510(e) (which reads, in pertinent part, that “affidavits. ..shall show affirmatively thatthe affiant is competent to testify to the matters stated therein”); Zoda v. Hedden, 596 So. 2d 1225, 1226 (Fla. 2d DCA 1992) (holding, in part, that failure to attach certified copies of public records rendered affiant, who was not a custodian of said records, incompetent to testify to the matters stated in his affidavit as affiant was unable to authenticate the documents referred to therein.) 6. Here, XEE MOUA affirmatively states in the Affidavit that she is “familiar with the books of account and have examined all books, records, and documents kept by WELLS. FARGO BANK, N.A., conceming the transactions alleged in the Complaint.” XEE MOUA averred that the Plaintiff is owed $647,521.77. Nevertheless, XEE MOUA has failed to attach any of the books, records or documents referred to in the Affidavit. WHEREFORE, Defendant respectfully requests that this Honorable Court strike Plaintiff's affidavits for violating Florida Law and the Florida Rules of Civil Procedure. Conrad Willkomm Bar No. 0697338 Attorney for Defendants LAW OFFICE OF CONRAD WILLKOMM, P.A. 590 11" Street South Naples, FL 34102 Tel: (239) 262-5303 Fax: (239) 262-6030 CERTIFICATE OF SERVICE Thereby certify that a copy hereof has been furnished via facsimile to (813) 251-1541 and by first class mail to Christina N. Riley, Esq., of Florida Default Law Group, P.L. at PO Box 25018, Tampa, Florida 33622 on September 4A , 201 Conrad Wilikomm, Esq. LAW OFFICE OF CONRAD WILLKOMM, P.A. 590 11" Street South Naples, FL 34102 Tel: (239) 262-5303 Fax: (239) 262-6030IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT, IN AND FOR LEE COUNTY, FLORIDA CIVIL DIVISION HSBC BANK USA, NA AS TRUSTEE FOR WELLS FARGO ASSET SECURITIES CORPORATION, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-ARS Plaintiff, vs. CASE NO. 10-CA-50089 SCOTT SHINNEMAN, et al. Defendants. AGREED ORDER $I TUTING cL This Agreed Order requires execution by various parties’ counsels. Accordingly, this Agreed Order may be executed in counterparts, with individual signatures on various copies of this Agreed Order. These copies, when assembled, shall constitute an Agreed Order and shall be fully operable and binding on all parte Florida Rule of Judicial Administration 2.505(e)(2) permits the parties to substitute counsel in writing signed by the parties’ attorneys and the client. It is therefore, ORDERED: 1, That SCOTT SHINNEMAN’S attorney, MICHAEL S. TOBIN , be substituted by CONRAD WILLKOMM. DONE and ORDERED in Chambers at Fort Myers, Lee County, Florida, this__ day of September 2010. Honorable Lynn Gerald, Jr. Circuit Judge ‘The parties agree that faxed copies will be treated as originals. Stipulated and agreed to by and between: Law Office of Conrad Willkomm, P.A. 590 11" Street South — 103 Yl Conrad Willkomm, Esq, * Florida Bar Number: 697338 Scot Shinnem: e/a Copies to: Law Office of Conrad Willkomm, P.A.; Michael S. Tobin, Esq