IN THE COUNTY COURTIN AND FOR HIGHLANDS COUNTY, FLORIDA

SMALL CLAIMS DIVISION21 DECEMBER 2012

CAPITAL ONE BANK (USA), N.A., CASE NO. 2011 - 301 - SPS

Plaintiff,

v.

JAMES A. MOTIL,

Defendant. _____________________________/

AFFIDAVIT OF JAMES A. MOTIL, JUNIOR - 21 DEC. 2012

1. I, the undersigned affiant, am over the age of twenty-one and I am competent to

testify in this matter because I have personal knowledge hereof.

2. The original Statement of Claim does not identify me by my full, legal name.

3. The amended Statement of Claim does not identify me by my full, legal name..

4. For all the reasons stated in my "Motion for a Protective Order and Response to

Plaintiff's Proposed, Dilatory and Malicious 'Amended Statement of Claim for Damages,'" I

believe both Plaintiff's original claim and its amended claim FAIL to show standing of Plaintiff

and FAIL to state a cause of action, thus this Court does not appear to have competent

jurisdiction to either hear this matter or to make any orders other than dismissing the action.

5. This Court ordered Plaintiff's attorney of record, Andrew D. Fleisher, to appear by

telephone at a hearing on or about 29 November 2011. Mr. Fleisher failed to obey that order.

6. Judge Ritenour overlooked that failure to obey, apparently, because another attorney-

at-law appeared by telephone. This attorney was not the attorney-of-record, but he, evidently,

was a member of Mr. Fleisher's law firm.

7. Although a written answer is not required in the small claims division of county

courts, Plaintiff requested the Court to order me to file an answer so that Plaintiff would know

my "defenses." The Court granted Plaintiff's motion and ordered me to file a written answer. I

obeyed that order and filed an Answer on 25 April 2012.

8. The Court, also, ordered Plaintiff to send me a letter (to set up my deposition without

any production of documents1) within thirty (30) days after I served my Answer upon Plaintiff.

Plaintiff failed to obey this order, but did file a dilatory and malicious notice of "Sequestration."

9. Although Plaintiff filed a notice of "Sequestration," it failed to serve me a copy. Our

United States' Constitution does not allow a party to be sequestered from witnesses against him.

Plaintiff did not request any discovery and did not identify any witnesses at the pretrial

conference. I filed "Objections" to said notice and a hearing was held on 7 September 2012. At

the hearing the Judge said he was going to order me to produce documents before my deposition.

Thus, the Court rewarded Plaintiff for disobeying the Court's order by increasing discovery.

10. A proposed, written order was prepared by Plaintiff and submitted to the Court. The

copy of the order I received from the Court had a rubber-stamped signature for County Court

Judge Anthony L. Ritenour. The order was dated 19 October 2012, but it did not show any

evidence that it had been filed or "entered" with the Clerk of Courts. The postmark date on the

envelope says "23 OCT 2012." The online docket says the order was entered on 23 October

2012. The copy I received was not "conformed" to show the date of its filing or "entry" in the

Clerk of Court's file on this case.2 The order says "30 days from the date of entry of this Order."

[Emphasis added.] The judge read the order at the hearing of 30 November 2012.

11. Thirty (30) days from 23 October was 22 November 2012 (Thanksgiving Day). The

next court business day was Monday, 26 November 2012.3 Plaintiff PREMATURELY filed and

served a copy of its "Motion for Sanctions for Non-Compliance with the Court's Order on

Discovery" on 21 November 2012--a full FIVE (5) days before the 30-day deadline of 26

November 2012. The online docket shows a copy of said motion was filed on 21 November

2012. It appears that the original motion was filed on 25 November 2012, the day before the

deadline.

12. Plaintiff did not contact me prior to serving its Motion for Sanctions.

1 See the transcript of the 1 March 2012 hearing at page 17, lines 4-17.2 See the definition for "Entering Judgments" on page 531 of Black's Law Dictionary, 6th Ed. "When a party is

charged with preparation of an order, it requires service of the proposed form on other parties and delivery of sufficient copies to the court to be conformed and furnished to all parties after entry." Fla. R. Civ. P. 1.080, 5 January 2012, Committee Notes - 1971 Amendment, emphasis added, and see 1976 Amendment notes.

3 See Fla. R. Civ. P. 1.090(a), 5 January 2012. The Civil Rules changed on 30 November 2012.

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13. I believe I should have been allowed at least ten (10) days to respond to Plaintiff's

untimely Motion for Sanctions. As I understand it, the tenth (10th) day would have been on

Saturday, 1 December 2012. The next business day happens to be Monday, 3 December 2012. I

was arrested and placed in the County Jail on the morning of Friday, 30 November 2012, in a

small claims civil case! The Judge did not even suggest the sanction of disposing of the case in

Plaintiff's favor, which should have been the maximum sanction against me in this case--IF I had

actually disobeyed an order of court. I DID NOT DISOBEY A COURT ORDER.

14. My "Motion for a Protective Order..." was timely filed on 28 November 2012, two

(2) days prior to the hearing of Friday, 30 November 2012 which was, originally, set to hear

Plaintiff's Motion for Leave to Amend its original Statement of Claim.

15. Judge Ritenour has, repeatedly, ignored the law and the rules: by denying my

several motions (one of them was denied as punishment for pleading the 5th Amendment at a

hearing); by ignoring Plaintiff's failure to obey two orders; by treating Plaintiff's dilatory and

malicious papers as if they were legitimate; by not letting me finish talking at the hearing of 30

November 2012; by ignoring my "Motion for a Protective Order..." both on 30 November 2012

and on 3 December 2012, and by placing me under arrest so quickly at the malicious insistence

of Plaintiff's attorney-at-law when several other, more reasonable, sanctions were available.

16. My arrest appears to be "cruel and unusual punishment" under these circumstances.

The message I got from the Judge was that I had to prove their case for them, or he was going to

lock me up, and all my legal defenses were just "games" to the Judge.

17. At the hearing on 3 December 2012, the Judge warned me to stop playing "games."

This statement is more evidence that he thinks my defensive papers were not legitimate. The

record shows that it was Plaintiff who was playing games at my expense. The record shows that

Judge Ritenour ordered cruel and unusual punishment upon me in spite of the fact that I did not

disobey any order of the Court. This is extremely prejudicial to me.

18. I have filed copies of two similar cases where Judge Ritenour dismissed the actions

because Plaintiff did not produce an application (or contract) signed by the defendant. Plaintiff

has not stated a cause of action and this Court does not have subject matter jurisdiction. The

Court did not set a trial date at the pretrial conference. This action has gone on for over fifteen

(15) months while Plaintiff stalled for time to find a cause of action that was never found.

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19. For the reasons stated herein and in my "Motion for Protective Order...," it appears

that Judge Ritenour is determined to rule against me and to punish me while he ignores the facts,

the law and the rules. Thus, I will not be attending any more hearings before this Court.

20. As I have said in my other papers, it is not my responsibility to prove Plaintiff's case,

especially when its Claim is not well pled. Bank statements are not contracts. Attached to this

affidavit are copies of my redacted bank statements (32 pages) pursuant to the Judge's order

showing payments to "CAPITAL ONE." I have no other checks or records regarding said

payments. I object to this discovery, but the Judge has convinced me that my objections are

futile, because he thinks they are just "games."

21. Because I have, under duress, admitted all the allegations of the Amended Statement

of Claim, there appears to be no need of any further discovery in this action. I cannot afford to

take any more time off from my newly acquired job. As far as I am concerned, this small claims

action is over.

22. I have read the foregoing affidavit and I affirm, under penalties of perjury under the

laws of Florida, that the facts stated herein are true and accurate to the best of my knowledge and

belief.

23. FURTHER AFFIANT SAYETH NAUGHT.

JAMES A. MOTIL, JUNIOR., Affiant113 S DELANEY AVEAVON PARK FL 33825-3930Telephone: (863) 443-1061

___________________________________ Date: 21 December 2012

CERTIFICATE OF SERVICE

I, James A. Motil, Jr., certify that a copy of the foregoing document was mailed to the

person listed below on the 21st day of December 2012:

ANDREW D FLEISHER Telephone: (954) 384-1490ERSKINE & FLEISHER FAX: (954) 384-408855 WESTON RD - STE 300FORT LAUDERDALE FL 33326-1170

Certified by: JAMES A. MOTIL, JUNIOR113 S DELANEY AVEAVON PARK FL 33825-3930

____________________________ Telephone: (863) 443-1061

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