The Florida courts had previously enacted legislation and changed the very
rules of Florida Civil Procedure to mandate an additional requirement
prior to a bank filing a foreclosure action. Florida Rules of Civil Procedure
1.110 forces the banks or their servicer to verify the information alleged
in their complaint. More specifically, the rule states: "Under penalties
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".
Some courts have found that verifying the complaint after the enactment
of this rule is considered a condition precedent to filing a foreclosure
action and that if the verification is incorrect or lacking in any aspect,
the case should be dismissed. Other courts, especially around the time
this rule was enacted, gave a little more leeway to the banks and permitted
them to amend the defective complaint to include the verification language
rather than an outright dismissal of the action.
When the rule was created, a frequent strategy in foreclosure defense was
to attack the legal sufficiency of the verification, however, as time
has gone by, verification issues have become less common. The banks usually
take steps to properly comply with this requirement prior to filing their
foreclosure action. However, that is not to say that verification issues
are completely eliminated.
We recently came across a complaint that had the wrong verification attached.
The verification was attached as the last page of the complaint and purported
to verify a different complaint filed in a different county, with the
wrong case number, against of someone other than our client. We had previously
raised this issue to the court earlier in the case and additionally discuss
the issue with opposing counsel. The bank was very much aware of this
issue and had ample opportunity to correct it but chose to ignore it instead.
I can only assume they didn’t think it would be a problem, or that
they could easily correct it at trial. And sure enough, the case was eventually
set for trial.
The day of trial, we made a motion to dismiss the action based upon the
banks failure to verify the complaint. The attorneys representing the
bank at the time seemed to have been caught off guard by this issue despite
us having brought it to their attention multiple times before. Since some
courts say the case should be dismissed, while other courts say the bank
should be able to fix their problem, the judge ultimately permitted the
bank to amend their complaint to include the proper verification.
Although we would have preferred to have the complaint dismissed, we forced
the bank to fix their mistake moments before we started trial. By doing
so, we were able to have the trial cancelled and kept our client in his
home a little longer. With this extra time, the client can continue to
work on a modification, all while forcing the bank to play by the same
rules as everyone else.
Just goes to show that every defense, no matter how small, can change the
tide and help keep you in your home. Call Loan Lawyers today to set up
a consultation and let us help you identify ways to help save your home.