DOCKET NO. CV - 10- 6004566-S : SUPERIOR COURT ASTORIA FEDERAL MORTGAGE CORP. : JUDICIAL DISTRICT OF STAMFORD / NORWALK VS: : AT STAMFORD JOHN SULLO, ET AL : MARCH 11, 2012

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO STRIKE AFFIDAVITS OF RICHARD G. FIKE AND JAMES D. STONECIPHER

The Defendant, John Sullo, in the above-captioned matter files the instant

Memorandum Of Law In Support Of Defendant’s Motion To Strike Affidavits Of Richard

G. Fike And James D. Stonecipher.

It is elementary that a Court of Law should only entertain relying on facts and

information contained in an affidavit where the affiant has personal knowledge. There

is voluminous case law from around the country evidencing courts dismissing affidavits

which do not survive the test of “personal knowledge”. Case law in Connecticut is

consistent with the idiom that an affiant must hold first hand “personal knowledge”.

In the Superior Court matter of Denise Farina v. Branford Board of Education, New

Haven J.D. (CV10-5033085-S), Memorandum of Decision of Judge Robin L Wilson,

May 27, 2010, the Court Granted Defendant’s Motion To Strike Plaintiff’s Affidavit, as it

was not based on personal knowledge. In entertaining the Defendant’s motion, the

court noted that it raised the issue of the affidavit’s credibility, which affects how the

court will consider plaintiff’s argument. In the Plaintiff’s affidavit, Mica Notz, the senior

paralegal of the law firm representing the plaintiff, attests to statements made by “Jane,”

who answered the telephone when Notz called the Branford town clerk's office. The

Court found that the Affidavit consists of “Hearsay”. The Court further stated, the

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majority of the averments in the affidavit rely upon information obtained by Notz through

“Jane,” not upon Notz's personal knowledge.

In the Superior Court Matter of JP Morgan Chase Bank v. Michael Porzio, Stamford

J.D., (CV09-5010388-S), Order of Judge Douglas Mintz, October 11, 2011, Defendant’s

Motion To Strike Affidavit Of Lost Note was Granted. Defendant successfully argued

that the Affiant, Christie H. Hill, did not make the claim to have personal knowledge.

The Court agreed that Plaintiff’s Affidavit was Hearsay. It was also found that Affiant

failed to allege that she had personal knowledge of how the business records were kept

at Washington Mutual, the predecessor bank.

In the instant Astoria Federal Mortgage Corp. v. Sullo matter, both of the Affiants in

the subject Affidavits Of Debt fail to allege what exactly they have personal knowledge

of. Neither affiant makes any attestation that they have personal knowledge of the

business records of Astoria Federal Mortgage Corp., how such records were kept, who

in particular is the custodian of records, and whether affiants have any personal

knowledge of any of the financial affairs of Defendant John Sullo.

Defendant John Sullo argues and maintains, that an affiant cannot gain personal

knowledge by a transfer of knowledge held and/or stated by someone else, such is

hearsay. “ ‘Hearsay’ means a statement, other than one made by the declarant while

testifying at the proceeding, offered in evidence to establish the truth of the matter

asserted.” Connecticut Code of Evidence, § 8-1(3).

In the Superior Court Matter of Winkleman v. Dohm, Waterbury J.D. (CV92-096682-

S), Judge Barnet, April 27, 1992, (6 Conn. L. Rptr. 382), The court held that an affidavit

in support of a motion to dismiss must meet the same requirements of an affidavit in

support of a motion for summary judgment ․ The statements contained in the affidavit

must be based on personal knowledge.

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Defendant points out to the Court that, the very concept of an affidavit is a document

stating facts within the knowledge of the affiant. See Friends of Animals, Inc. v. United

Illuminating Co., Superior Court, judicial district of New Haven, Docket No. CV 06

4018257 (September 20, 2006, Skolnick, J.T.R.).

Federal Law

Many states, such as Florida [Rule 1.510(e)], and Kentucky [Rule CR 56.05] follow

and adopt the principle and standard set forth in the Federal Rules Of Civil Procedure,

Rule 56(e)(1):

“A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit. The court may permit an affidavit to be supplemented or opposed by depositions, answers to interrogatories, or additional affidavits. [emphasis added]”

A district court may properly hold that portions of or all of an affidavit attached to a

motion for summary judgment is inadmissible because the affiant lacks personal

knowledge or first hand information. See Bruno v. Plateau Mining Co., 747 P.2d 1055

(Utah App. 1987). See also, Murdock v. Springville Municipal Corp., 982 P.2d 65, 72

(UT App. 1999).

In the foreclosure matter of GMAC Mortgage, LLC vs. Debbie Visicaro, ET AL (Case

No: 07013084-CI) 6th Judicial Circuit Court in Pinellas County, Florida; Honorable

Anthony Rondolino shed light on the issue of credibility of affiants and the so called

“Personal Knowledge Affidavits” and other documents being filed in Florida foreclosure

lawsuits. On April 7, 2010, Judge Rondolino in Court Hearing stated, “I really

honestly--I don’t have any confidence that any of the documents the Court’s

receiving on these mass foreclosures are valid” (transcript of Hearing, April 7, 2010,

pg. 7, lines 11-14). Judge Rondolino further proclaimed on the court record, “You

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know what I’d really like to see? I’d like to see in one of these cases where a

defense lawyer cross-examines, takes a deposition of these people, and we can

see whether they ought be charged with perjury for all of these affidavits”

(transcript of Hearing, April 7, 2010, pg. 15, lines 20-25).

Unconscionability and fraud are grounds for withholding of foreclosure in Connecticut

on equitable principles.

“Other equitable defenses that our Supreme Court has recognized in foreclosure

actions include unconscionability” New Haven Savings Bank v. LaPlace,(AC

21388)(2001).

‘‘Where the plaintiff’s conduct is inequitable, a court may withhold foreclosure on

equitable considerations and principles.’’ Southbridge Associates, LLC v. Garofalo,

supra, 15; see also Hamm v. Taylor, 180 Conn. 491, 497, 429 A.2d 946 (1980).

The Defendant John Sullo maintains, pursuant to his constitutional rights afforded

under the fourteenth amendment to the United States Constitution, that this honorable

court uphold long standing principles and rules of evidence both found on a state level

and in the mirrored Federal Rules of Evidence. Affidavits presented by any party to an

action in Connecticut which are not based upon first hand “personal knowledge” simply

are not admissible as valid evidence.

Moreover, the attempt by persons who do not have any traceable employment

history with and for the Plaintiff, claiming to have personal knowledge of the records,

files, or accounting of Astoria Federal Mortgage Corp., and /or inferring to have

knowledge of the affairs of John Sullo without any supporting factual foundational basis

should be dismissed by this court, and such inequitable and prejudicial proceedings as

well subject to dismissal as per established opinion and case law in Connecticut.

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WHEREFORE, for all the reasons as set forth above, the Defendant’s Motion To

Strike Affidavits Of Richard G. Fike And James D. Stonecipher should be GRANTED,

as this honorable court has no legal authority to accept as valid information, facts,

and/or figures from any Affiant who does not hold any personal knowledge.

The Defendant

Respectfully Submitted, By:______-042191-______________ Paul S. Nakian, Plaintiff’s Attorney

90 Campbell Drive Stamford, CT 06903

Tel: 203-357-7777 - Office 203-356-9490 – Fax

Email: NakianLaw@aol.com Juris #042191

CERTIFICATION OF SERVICE

The Defendant, John Sullo, hereby certifies that a true and correct copy of the

foregoing Memorandum Of Law In Support Of Defendant’s Motion To Strike

Affidavits Of Richard G. Fike And James D. Stonecipher has been furnished via U.S.

First Class Mail on March 11, 2011 to the office of the Plaintiff’s counsel, Bishop,

Jackson & Kelly, LLC, at the address of 472 Wheelers Farm Road, Milford, CT 06461.

Certification Of Service By The Defendant:

-042191-

________________________________ John Sullo by his Attorney

Paul S. Nakian, Esq.