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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.