IN THE CIRCUIT COURT OF THE __ JUDICIAL CIRCUIT

IN AND FOR ____ COUNTY, FLORIDA______

PLAINTIFF

v.CASE NO. _________________

DEFENDANTS___________________________________/

MEMORANDUM OF LAW NO REAL EVIDENCE

Form 1.944 promulgated by the Florida Supreme Court provides the guidelines by which a cause of action, or warrant in debt, for a mortgage foreclosure may be properly stated in any court of the state. This form itself of course does not replace the traditional evidentiary requirements that apply in any civil proceeding and in fact does not preclude the obligation of the party using such form from alleging real facts along with those allegations demonstrated in the form itself. This was the holding in Lundstrom v. Lyon, 86 So.2d 771 [I]t cannot be doubted that courts may not by rule of practice either by statutory or inherent rule making authority, amend or abrogate a right resting in either substantive or adjective law.

Plaintiff filed this mortgage foreclosure complaint using Form 1.944 and failed to allege any facts beyond those appearing in the form itself. The pleadings fail to allege any real evidentiary facts or identify any witness or custodian of the instruments upon which the claim is brought. There is no verification and no affidavit as to any real facts.

A careful review of the case file will show that it consists merely of words on paper and the only affidavits consist of nothing more than billable hours and costs by those representing the plaintiff. There is no verification, no statements made under oath by real witnesses, no genuine documentary evidence and in fact, no evidence from the plaintiff appears in the evidence file. [An attorneys] unsworn statements do not establish facts in the absence of stipulation. Trial judges cannot rely upon these unsworn statements as the basis for making factual determinations; and this court cannot so consider them on review of the record. If the advocate wishes to establish a fact, he must provide testimony through witnesses other than himself or a stipulation to which his opponent agrees. Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So.2d 1015 (Fla. 4th DCA 1982). There is no such stipulation in this case, only words on paper or unsworn statements.

Recalling that this entire matter began with a form promulgated by the Florida Supreme Court, operating under the obligations of the Florida Constitution, from which the obligation originates, the obligation identified under Article I, 12, being that No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.

The United Statute Supreme Court has ruled on the same in Groh v. Ramirez, 540 U.S. 551 (2004), that holds Every warrant must meet the requirements of the warrant clause and be based upon probable cause, supported by oath and affirmation.

The warrant filed by the plaintiff fails on every single obligation identified herein. Furthermore, it is black letter law in this state that an original writing is required in order to prove the contents of the writing, to wit:Title VII EVIDENCE

Chapter 90 EVIDENCE CODE

90.952 Requirement of originals.--Except as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording, or photograph.

And the plaintiff would respond with some words about duplicates being admissible; however, this court must take judicial notice of Florida Statute 90.953:

90.953 Admissibility of duplicates.-- A duplicate is admissible to the same extent as an original, unless:

(1) The document or writing is a negotiable instrument as defined in s. 673.1041, a security as defined in s. 678.1021, or any other writing that evidences a right to the payment of money, is not itself a security agreement or lease, and is of a type that is transferred by delivery in the ordinary course of business with any necessary endorsement or assignment.

(2) A genuine question is raised about the authenticity of the original or any other document or writing.

(3) It is unfair, under the circumstance, to admit the duplicate in lieu of the original.

History.--s. 1, ch. 76-237; s. 1, ch. 77-77; s. 22, ch. 78-361; s. 1, ch. 78-379; s. 57, ch. 92-82; s. 29, ch. 99-2.

The duplicates sought to be admitted in lieu of the genuine originals do not meet any of the legal requirements and in fact are precluded by each and every provision of F.S. 90.953. The note and mortgage are securities and promises to pay and may involve an endorsement and the genuineness of the documents provided by the plaintiff has been questioned at every instance by the defendant. In fact the defendant has provided testimony and real evidence directly controverting all unsworn statements about these documents and regarding the actual documents themselves. Upon the introduction of the documents provided by the plaintiff, the defendant has demanded and required the plaintiff via discovery and notice to introduce any other part or any other writing or recorded statement that would authenticate or establish the genuineness of such documents. In deed this is required as a matter of law:

90.108 Introduction of related writings or recorded statements.--

(1) When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him or her at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously. An adverse party is not bound by evidence introduced under this section.

(2) The report of a court reporter, when certified to by the court reporter as being a correct transcript of the testimony and proceedings in the case, is prima facie a correct statement of such testimony and proceedings.

History.--s. 1, ch. 76-237; s. 1, ch. 77-77; ss. 2, 22, ch. 78-361; ss. 1, 2, ch. 78-379; s. 472, ch. 95-147; s. 5, ch. 95-286.

And yet the plaintiff has ignored these demands and requests as if it has some special arrangement with the court that would allow it to proceed in spite of these deficiencies.

Section 90.901, Florida Statutes (1997), requires evidence to be authenticated. Section 90.902 lists a number of items which can be self-authenticated, i.e., admitted without extrinsic evidence of authenticity. Most of the things which are self-authenticating are items such as official documents, books or other printed materials.

Section 90.901, Florida Statutes (1987), provides that the authentication requirement is satisfied by evidence "sufficient to support a finding that the matter in question is what its proponent claims." Since traditional methods of authentication (e.g., testimony or other extrinsic evidence) "may prove troublesome, time consuming, and expensive," McCormick on Evidence 228, at 699 (3d ed. 1984), Section90.902 permits evidence to be "self-authenticated" when "the document itself discloses sufficient information to be admitted without further proof of its genuineness." C. Ehrhardt, Florida Evidence 902.1, at 585 (2d ed. 1984). Accordingly, self-authentication is said to be an "exception" to the general requirement of authentication. 11 J. Moore & H. Bendix, Moore's Federal Practice 902.02 (2d ed. 1988); C. Ehrhardt, supra 902.1, at 585. See McCormick on Evidence 228, at 699-700 (self-authentication is an "escape from authentication requirements"). SUNNYVALE MARITIME CO. v. ELSA DELFINA MONTOYA GOMEZ, 546 So. 2d 6; 14 Fla. Law W. 322.

Federal decisions interpreting Federal Rules of Evidence 901 and 902 (upon which the Florida rules are based) quite clearly hold that self-authentication is only one of several ways to authenticate documents. "The FRE offers generous opportunity to authenticate by presentation of sufficient evidence to support the authenticity of a document. Alternatively, if 902(3) is met the document is self-authenticating." United States v. Perlmuter, 693 F.2d 1290, 1293 (9th Cir. 1982) (emphasis added). "Documentary evidence introduced in federal courts must be authenticated under the provisions of Rules 901 or 902 of the Federal Rules of Evidence." Amoco Production Co. v. United States, 619 F.2d 1383, 1391 (10th Cir. 1980) (emphasis added). See also First National Bank v. M/V Lightning Power, 851 F.2d 1543, 1548 (5th Cir. 1987) (document was "neither self-authenticating nor authenticated by the testimony"); United States v. Rue, 819 F.2d 1488, 1494 (8th Cir. 1987) (although document is not self-authenticating, it is admissible under other procedures for authentication); In re Bobby Boggs, Inc., 819 F.2d 574, 580 (5th Cir. 1987); Ogden Environmental Services v. City of San Diego, 687 F.Supp. 1436, 1437 n.1 (S.D. Cal. 1988).

"Computer printouts, like business records, are admissible if the custodian or other qualified witness is available to testify as to manner of preparation, reliability and trustworthiness of the product." Cofield v. State, 474 So. 2d 849, 851 (Fla. 1st DCA 1985)(adopting rule as stated in Pickrell v. State, 301 So. 2d 473, 474 (Fla. 2d DCA 1974)); seeDeSue v. State, 908 So. 2d 1116 (Fla. 1st DCA 2005). In appropriate circumstances, a printout may also be admissible as a properly certified copy of an official public record. See90.902(4), Fla. Stat. (2003); Charles W. Ehrhardt, Florida Evidence902.5, at 945 (2004 ed.) (explaining that to be self-authenticating under section 90.902(4), "the custodian of the document, or other person authorized by statute to make a certification, must certify that the copy is correct and that the person has custody of the original . . . . The custodian's signature must follow the statement"). CompareKing v. State, 590 So. 2d 1032, 1033 (Fla. 1st DCA 1991)(holding probation officer's testimony regarding defendant's release date, based on an unauthenticated Department of Corrections computer printout, was inadmissible hearsay, and that "[w]ithout the improperly admitted testimony, the evidence is legally insufficient to support the trial court's finding that appellant is an habitual felony offender").

Gray v. State, 910 So. 2d 876, 869 (Fla. 1st DCA 2005) (emphasis in original; footnote omitted).*fn2 See also Glover v. State, 871 So. 2d 1025, 1025-26 (Fla. 1st DCA 2004); King v. State, 590 So. 2d 1032, 1033 (Fla. 1st DCA 1991); Charles W. Ehrhardt, Florida Evidence 803.6b, at 911-13 (2006).

To show standing, then, in a foreclosure action, the plaintiff must show that it is the holder of the note and the mortgage at the time the complaint was filed. In re FORECLOSURE CASES Nos. 3:07CV043, et al., 521 F.Supp.2d 650 (2007). The plaintiff has failed to show itself as the holder of the note and mortgage that it purports to be by any scintilla of evidence. The rules we have adopted in our system of law are necessarily unforgiving, especially in the above captioned matter, and as further illustrated in Figueredo, The plaintiff failed to produce for admission into evidence the original copy of the promissory instrument as is expressly required by section 90.953(1), Florida Statutes (1987). For this reason, the final judgment of foreclosure is vacated with directions for the trial court to receive the original promissory note in evidence, after which it will be authorized to reconfirm the final judgment of foreclosure and all subject proceedings which occurred thereto. . The final judgment is vacated and remanded with directions. Figueredo v. Bank Espirito Santo, 537 So.2d 1113 (3rd DCA Fla. 1989).

Now, why is the system the way it is and what happens when the individual judges in the court and its officers (attorneys) refuse to respect this system? Just ask Charlie and Maria Cardoso who paid cash in 2005 for their house in Spring Hill and five years later it was foreclosed upon by Bank of America because of a mistaken address with a home just ten doors down from theirs. The article is attached as Cardoso Exhibit and defendant demands that this court take judicial notice of the article and read it carefully. Nothing says that the same cannot happen to officers of this court or their family members anymore than it has to the Cardoso Family and a growing list of others around the nation.

It is incumbent upon this court to abide by the laws that created this court in the first place and therefore to contain itself within the bounds of those legal duties and obligations under which it operates and to therefore act accordingly and to require those officers and agents having their first duty to this court themselves be governed accordingly. The alternative being to cease in their professions and pay the defendant the damages they have caused out of the bonds and indemnification that permits them to be here in the first place.DATED this ___ day of ________ ____.

________________________

First Last, Defendant

________________________

First Last, DefendantCERTIFICATE OF SERVICE

I ______ hereby certify that a true copy of the foregoing has been furnished by U.S. Mail to ____________at _____________; this ___ day of __________ ____.By: ___