The Importance of Verification
The Florida courts have previously passed legislation and changed the very rules of Florida Civil Procedure to order a surplus prerequisite prior to a bank filing a foreclosure deed. Florida Rules of Civil Procedure 1.110 requires the banks or their servicer to authenticate the statistics suspected in their criticism. More specifically, the statute 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 confirming the complaint after the depiction of this law is considered a circumstance pattern to filing a foreclosure action and that if the verification is false or lacking in any aspect, the case should be discharged. Other courts, especially in the interval in which this rule was enacted, gave a little more leeway to the banks and permitted them to amend the flawed criticism to include the verification dialect rather than an absolute release of the action.
When the rule was generated, a recurrent strategy in foreclosure defense was to attack the legal adequacy of the verification, however, as time has gone by, verification issues have become less common. The banks usually take steps to appropriately comply with this obligation prior to filing their foreclosure action. However, that is not to say that verification issues are completely disregarded.
We recently came across a complaint that had the wrong verification attached. The verification was attached as the last page of the complaint and alleged to verify a different complaint filed in a different county, with the wrong case number, against of someone other than our client. We had formerly raised this issue to the court earlier in the case and also discussed the issue with opposing counsel. The bank was very mindful of this issue and had sufficient opportunities to correct it but chose to overlook it instead. I can only assume they didn’t think it would be a issue, 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 criticism. 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 allowed 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 instants before we started trial. By doing so, we were able to have the trial annulled 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 obliging the bank to play by the same rules as everyone else.
Call me, Brian Korte, to set up a consultation and let us help you identify ways to help save your home. (561) 228-6200