BILL H. THOMPSON, APPELLANT,
v.
CITIZENS NATIONAL BANK OF LEESBURG, FLORIDA, ET AL., APPELLEES
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Bill Thompson appeals a summary judgment entered against him in a dispute over an unpaid automobile loan note. The appellate court reversed, holding that the FDIC's supporting affidavit failed to comply with Florida procedural rules requiring personal knowledge, and that Thompson's sworn denial of liability created a genuine issue of material fact precluding summary judgment.
Summary judgment was improper. The FDIC's affidavit did not comply with Rule 1.510(e) because the affiant could not state personal knowledge of the matters in the bank records or verify their completeness and accuracy. Additionally, Thompson's sworn affidavit that he had paid the note created an issue for trial without requiring corroboration.
[1] An affidavit supporting a motion for summary judgment must be made on personal knowledge; an affidavit based on information and belief is inadmissible.
[2] A party's sworn statement denying liability or asserting payment is sufficient to create a genuine issue of material fact, even if uncorroborated.
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Join FLexlaw to unlock all legal intelligence“An affidavit based on information and belief rather than personal knowledge is not admissible into evidence and should not be considered by the trial court on a motion for summary judgment.”
Establishes the key procedural requirement that affidavits supporting summary judgment motions must be based on personal knowledge
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Join FLexlaw to unlock all legal intelligenceThompson obtained an automobile loan from Metro Bank, which was later succeeded by the FDIC. The FDIC claimed Thompson owed $7,369.40 on the promissor…
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FRANK D. UPCHURCH, Jr., Judge.
Bill Thompson appeals from a final summary judgment in favor of appellee Federal Deposit Insurance Corporation (FDIC). FDIC, as an intervenor, filed a third-party claim against Thompson for damages on a promissory note. Thompson had obtained a loan for an automobile from FDIC’s predecessor in interest, Metro Bank. FDIC alleged non-payment and that it had elected to accelerate payment.
In his answer to the third-party claim, Thompson denied there was a valid note and affirmatively alleged payment in full. In support of its motion for summary judgment, FDIC filed an affidavit of James Thompson,1 who had been employed by FDIC in the capacity of liquidator for Met ro Bank. He alleged that he was in custody of the business records of the bank relating to the note and indebtedness and that $7,369.40 remained due. He also stated that Thompson failed to make the payments due July 4, 1981, and thereafter. The affidavit also contained other matters reflecting the history of the transaction.
Thompson moved to strike the affidavit of James Thompson on the ground that the affiant lacked personal knowledge of the matters stated in the affidavit as required by Florida Rule of Civil Procedure 1.510(e). Thompson also filed an affidavit wherein he averred that he had paid off the loan.
The court in entering summary judgment found in part that there was no evidence in the bank records that the balance was paid in cash or otherwise and the bank records contained the original note. The court disregarded Thompson’s allegation that he had paid the note because it was uncorroborated. The record does not reflect any requests for admissions or other discovery.
We conclude that summary judgment should not have been entered. The affidavit on behalf of FDIC does not comply with rule 1.510(e) which requires that a supporting affidavit be made on personal knowledge. An affidavit based on information and belief rather than personal knowledge is not admissible into evidence and should not be considered by the trial court on a motion for summary judgment. See, e.g., Campbell v. Salman, 384 So. 2d 1331 (Fla. 3d DCA 1980); Silber v. Campus Sweater & Sportswear, 313 So. 2d 409 (Fla. 1st DCA 1975); Garwood v. Equitable Life Assurance Society of U.S., 299 So. 2d 163 (Fla. 3d DCA 1974). The affiant did not (nor could he) state that he had personal knowledge of the matters contained in Metro’s business records, nor that the bank records were complete or correct and were kept under his supervision and control. See § 90.803(6), Fla.Stat. (1981).
Even if the affidavit had been sufficient, Thompson’s affidavit that he had paid the note would create an issue for trial. We know of no requirement that the sworn statement of a party be corroborated to create an issue of fact.
REVERSED and REMANDED.
DAUKSCH and COBB, JJ., concur. . No connection with Bill Thompson.
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Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So. 2d 707 (Fla. 4th DCA 1997)…ven when referred to at trial by public officer); Jacksonville Elec. Auth. v. Department of Revenue, 486 So. 2d 1350, 1354 (Fla. 1st DCA 1986); Turk v. State, 403 So. 2d 1077, 1078-79 (Fla. 1st DCA 1981); Thompson v. Citizens Nat’l Bank of Leesburg, 433 So. 2d 32, 33 (Fla. 5th DCA 1983). In the case at bar, the records were not authenticated by anyone and it does not appeal’ as though any attempt was made to lay a proper foundation for the admissibility of the documents either as public records or as busines…
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Nationstar Mortg., LLC v. Berdecia, 169 So. 3d 209 (Fla. 5th DCA 2015)…y, Willoughby in fact worked for the prior servicer, Citi- [*215] Mortgage, at the time CitiMortgage initially serviced Borrowers’ loan. . We reject Borrowers' contention that this Court’s decision in Thompson v. Citizens National Bank of Leesburg, 433 So. 2d 32 (Fla. 5th DCA 1983), which reversed the trial court's entry of summary judgment based, in part, on the erroneous admission of an FDIC affidavit, controls the outcome of this case. In Thompson, we held that an affidavit based on "information and beli…
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Southland Constr., Inc. v. The Richeson Corp., 642 So. 2d 5 (Fla. 5th DCA 1994)…Rieheson and his corporation. This deposition testimony was therefore insufficient to create a material question of fact. See Anderson v. SeaEscape Ltd., Inc., 541 So. 2d 1339 (Fla. 2d DCA 1989); Thompson v. Citizens National Bank of Leesburg, Fla., 433 So. 2d 32 (Fla. 5th DCA 1983). See also, Marco Polo Hotel v. Popielarczyk, 622 So. 2d 104 (Fla. 3d DCA 1993). Whether the trial court properly entered summary judgment for Rieheson, individually, on the negligence count based on the “economic impact rule” (e…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Campbell v. Salman, 384 So. 2d 1331 (Fla. 3d DCA 1980)
- Garwood v. The Equitable Life Assurance Soc'y OF the United States, 299 So. 2d 163 (Fla. 3d DCA 1974)
- Silber v. Campus Sweater & Sportswear, 313 So. 2d 409 (Fla. 1st DCA 1975)