Free Objections - District Court of Delaware - Delaware

Case 1:06-cv—OO371-G|\/IS Document 29 Filed 08/O3/2006 Page1 of4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
COLUMBIA HOUSING/PNC §
INSTITUTIONAL FUND IV LIMITED § NO. 06-371
PARTNERSHIP, COLUMBIA §
HOUSING SLP CORPORATION, §
OCWEN 2000—LLC, PNC BANK, and §
COLUMBIA HOUSING/PNC §
FUND IV, INC., §
§
Plaintiffs, §
§ .
I v. §
§
OCWEN FEDERAL BANK FSB, §
OCWEN INVESTMENT §
CORPORATION, and OCWEN §
LOAN SERVICING, LLC, §
§
Defendants. §
REPLY TO RESPONSE TO OBJECTIONS TO DEFENDANTS’ AFFIDAVITS
Subsequent to the filing of Piaintiffs’ Objections to Defendants’ Affidavits, Defendants
have submitted two affidavits. On July 24, Defendants filed the Second Affidavit of Michael
Mosher in Support of Defendants’ Opposition to Piaintif`fs’ Motion for Leave to Deposit Funds
into the Court’s Registry and Defendants’ Motion to Dismiss Pursuant to Fed. R. Civ. P.
I2(b)(l). (Second Mosher Affidavit). (Docket 23). On July 26, Defendants filed the Second
Affidavit of David Ho in Support of Defendants’ Motion to Dismiss Pursuant to Fed. R. Civ. P.
I2(b)(l). (Second Ho Affidavit). (Docket 27). These affidavits undertook to address the
personal failure to show knowledge in the initial affidavits. The Second Mosher Affidavit also
added new statements, not previously contained in his affidavit.
In its Response to Objections to Defendants’ Affidavits, the Defendants complain that
Plaintiffs objected to deficiencies in affidavits, instead of filing a motion to strike. There is no

Case 1:06-cv—OO371-Gl\/IS Document 29 Filed 08/O3/2006 Page 2 of 4
magic to a denomination as a "motion to strike" rather than "objection.” Either is sufficient to
preserve Plaintiffs’ claims with respect to Defendants’ affidavits. Fed. R. Evid. l03(a)(l). As
the First Circuit noted in Perez v. Volvo Car Corp., 247 F.3d 303, 314 (lst Cir. 2001):
We believe that what is required to preserve a pa1ty’s rights vis—a—
vis an allegedly deficient affidavit is for the dissatisfied party to (a)
apprise the trial court, in a conspicuous manner and in a timely
fashion, that she considers the affidavit defective, and (b) spell out
the nature of the ostensible defects clearly and distinctly. Whether
the dissatisfied party fulfills these requirements by means of a
motion to strike or in some substantiallv equivalent way (say, by
an objection or as here, in a legal memorandum urging the
granting of summary judgment notwithstanding the affidavit) is of
little moment. (Emphasis added).
Accord Frasey v. Goodale, 342 F. 3d 1032, 1036 (9th Cir. 2003); Lugzte v. Hercules, Inc., 12 F.
Supp. 2d 1351, 1358 (S.D. Ga. 1997).
Defendants’ attempt to justify the affiants characterization of the contents of documents,
saying that they “have no doubt that this Court will be able to decide for itself how to evaluate
that documentary evidence. Plaintiffs are likewise confident of this Court’s ability, but want to
ensure that the Court is not mislead into assuming that Defendants’ characterizations are
accurate. Their purpose and effect should be determined from the documents themselves.
Objections To Second Mosher Affidavit
Plaintiffs object to the Second Mosher Affidavit, as follows:
l. Plaintiffs object to paragraph 3 of the Second Mosher Affidavit because same is a
conclusion, is hearsay, and fails to set forth facts which would be admissible in evidence.
2. Plaintiffs object to paragraph 4 of the Second Mosher Affidavit because same is a
conclusion, is hearsay, and fails to set forth facts which would be admissible in evidence.
Additionally, the documents referenced in this paragraph would be the best evidence of their
contents.
2

Case 1:06-cv—OO371-Gl\/IS Document 29 Filed 08/O3/2006 Page 3 of 4
3. Plaintiffs object to paragraph 5 of the Second Mosher Affidavit because same is a
conclusion, is hearsay, and fails to set forth facts which would be admissible in evidence.
Additionally, the documents referenced in this paragraph would be the best evidence of their
contents.
4. Plaintiffs object to paragraph 6 of the Second Mosher Affidavit because same is a
conclusion, is hearsay, and fails to set forth facts which would be admissible in evidence.
Additionally, the documents referenced in this paragraph would be the best evidence of their
contents.
Plaintiffs request that the Court not consider (and strike) all objectionable evidence.
August 3, 2006
ECKERT SEAMANS CHERIN & MELLOTT, LLC
— —».. ».- it
`"`‘ M ichael G. Busenkell (No. 3933)
Tara L. Lattomus (No. 3515)
300 Delaware Avenue, Suite 1360
Wilmington, DE 19801
(302) 425—0430
OfCounse1;
Charles L. Perry, Esquire
Andrews Kurth LLP
1717 Main Street, Suite 3700
Dallas, TX 75201
(214) 659-4681
if/0002814
3

Case 1:06-cv—OO371-G|\/IS Document 29 Filed 08/O3/2006 Page 4 of 4
CERTIFICATE OF SERVICE
1, Tara L. Lattoinus, certify that on August 3, 2006 I caused a copy of the
foregoing Reply To Response To Objections To Defendants’ Affidavits to be served in
the manner indicated on:
Hand Delivery
Domenic E. Pacitti (Bar No. 3989)
Saul Ewing LLP
222 Delaware Ave., Suite 1200
Wilmington, DE 19801
Facsimile and U.S. Mail
Joshua C. Krumhoiz
Holland & Knight LLP
10 St. James Avenue
Boston, MA 02116
{_ Xi?
Tara L. Lattomus (No. 3515)