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New verification of Foreclosure Complaint Rule interpreted in two opinions issued by Appellate Court

By Shaun Ramey • Saturday, September 15, 2012

The District Court of Appeal, Second District, issued two opinions recently interpreting the amended rule of procedure relating to the verification of foreclosure complaints. In the first decision, BAC v. Stentz, the Second District reversed the Pasco County Circuit Court.  The lender's original complaint was dismissed by the trial court for the lender's failure to sufficiently allege standing and its failure to verify the complaint.  BAC filed an amended complaint and attached a verification attested to by one of its employees, stating that the facts alleged in the complaint are “true and correct to the best of my knowledge and belief.”  The trial court dismissed the foreclosure complaint on the grounds that “to the best of my knowledge and belief” did not sufficiently verify the complaint pursuant to Section 92.525, Florida Statutes (2010).  The trial court also noted that the verification was improper because it was attached to the amended complaint instead of being incorporated within it.

The court held that amended Rule of Civil Procedure 1.110(b) added a specific verification requirement for residential mortgage foreclosure complaints, and therefore, Rule 1.110(b) controls rather than Section 92.525. Because BAC properly used the verification language contained in Rule 1.110(b), its complaint was properly verified under Florida law. The court also held that Rule 1.110(b) does not prohibit the verification from starting on a separate page. (Earlier this year Sirote & Permutt received the same result on this issue in an appeal out of Miami‐Dade County.)

A little background on Rule 1.110(b) may be helpful. The rule was amended on February 11, 2010, by the Florida Supreme Court, after analysis and recommendation by the Task Force on Residential Mortgage Foreclosure  Cases.   In  the  Administrative  Order,  the  Supreme  Court  announced  that  the  primary purposes of this amendment are (1) to provide incentive for the lender to appropriately investigate and verify its ownership of the note or right to enforce the note; (2) ensure that the allegations in the complaint are accurate; (3) to conserve judicial resources that are currently being wasted in inappropriately pleaded “lost note” counts; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations.

In the second opinion addressing Rule 1.110(b), Wells Fargo Bank, N.A. as Trustee v. Taboada, the Second District reversed the Pinellas County Circuit Court for incorrectly stating the rule relating to verification of foreclosure complaints.  The lender filed a mortgage foreclosure complaint and on December  22,  2010,  10  months  after  the  Supreme  Court  amended  Rule  1.110(b),  the  trial  court dismissed  the  complaint  instructing  the  lender  to  verify  the  amended  complaint  as  “true  and correct.”  Rule 1.110(b) specifically provides that when a foreclosure complaint on residential property is filed, it must be verified, and when verification is required, the document filed shall include an oath, affirmation, or the following statement:

Under penalty of perjury, I declare that I have read the foregoing, and the  facts  alleged  therein  are  true  and  correct  to  the  best  of  my knowledge and belief.

The Second District reversed the trial court for incorrectly stating the rule and remanded for further proceedings.

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