Burr Commentary: Florida Appellate Courts Refuse to Read More Into Rule 1.110(b) Than its Plain Language Dictates
In early 2010, the Florida Supreme Court amended Rule 1.110(b) of the Florida Rules of Civil Procedure to require that all residential foreclosure complaints be verified. The Rule requires a simple recitation:
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.
Fla. R. Civ. P. 1.110. Despite this straightforward language, foreclosure defendants regularly rely on this rule to seek dismissal of a foreclosure action on a variety of theories. Nonetheless,Florida Appellate Courts are increasingly rebuffing efforts to read more into the rule than its plain language. This post includes a compendium of cases in which Florida appellate courts have addressed such arguments under Rule 1.110(b). The most recent dispute has been over whether a servicer may execute the verification.In U.S. Bank, N.A. v. Marion, et al., 38 Fla. L. Weekly D1011a (Fla. 2d DCA 2013), the Second DCA reversed a trial court's dismissal with prejudice premised on a purported defective verification. The trial court dismissed the foreclosure action because the complaint was verified by an employee of the servicing agent rather than the plaintiff. In reversing, the appellate court recognized that "[m]ost foreclosure action are filed by commercial entities with numerous employees, agents, or independent contractors," and the verification must be signed by a representative on knowledge and belief. The court implied that this person may be a representative of the servicer,but it did not hold that a trial court lacks the authority to require the plaintiff to adduce additional information regarding the person signing the verification. In an earlier opinion similar to Marion, the Second DCA again concluded that a trial court departed from the essential requirements of law by requiring the plaintiff to verify the complaint as opposed to the servicer. See Deutsche Bank National Trust Co. v. Prevratil, 38 Fla. L. Weekly D569 (Fla. 2d DCA 2013). Here, the servicer verified the complaint as attorney in fact for the plaintiff. Indeed, the plaintiff had executed a power of attorney predating the filing of the complaint. Consequently, when it refused to give effect to the power of attorney, the trial court departed from the essential requirements of law. Further, the appellate court noted that the verification need not be executed on the basis of personal knowledge, but requires only that the plaintiff verify that "the facts alleged [in the complaint] are true and correct to the best of [the signer's] knowledge and belief." In U.S. Bank, N.A. v. Wanio-Moore, et al., 38 Fla. L. Weekly D770 (Fla. 5th DCA 2013), the Fifth DCA went further, reversing a trial court's order dismissing a foreclosure action with prejudice because the verification did not state the signer's position. Here, the appellate court bluntly stated that "the rule does not require any information about the signer's positional authority, and a court cannot 'read more into [rule 1.110(b)] than its plain language dictates." Accordingly, the Fifth DCA does not require the verification to include any information regarding the signer's position at all. A second argument concerns the physical location of the verification. In Becker v. Deutsche Bank Nat. Trust Co., 88 So. 3d 361, 362 (Fla. 4th DCA 2012), reh'g denied (June 5, 2012), the Fourth DCA refused to require that the verification be incorporated into the complaint. Here, the defendant borrowers argued that the verification was invalid because it was attached to the complaint as a separate document. In rejecting this argument, the Fourth DCA held that nothing in rule prohibits the verification from starting on a separate page. Such an argument places form over substance, and the Court was unwilling to add superfluous requirements to this ostensibly simple rule. The Second DCA soon followed suit in BAC Home Loan Servicing, L.P. v. Stentz, 91 So. 3d 235, 236 (Fla. 2d DCA 2012), similarly holding that the verification need not be incorporated within the complaint. A final issue relates to the specific language used in the verification. A trio of Second DCA cases have rejected the contention that Rule 1.110(b) requires verification of the complaint as "true and correct," and instead point to the plain language of the rule allowing the verification on information and belief. See Stentz, 91 So. 3d at 236; Wells Fargo Bank, N.A. v. Taboada, 93 So. 3d 1073, 1075 (Fla. 2d DCA 2012), reh'g denied (Aug. 3, 2012); Trucap Grantor Trust 2010-1 v. Pelt, 84 So. 3d 369, 372 (Fla. 2d DCA 2012) review denied, 103 So. 3d 141 (Fla. 2012). To conclude, this cross-section of cases demonstrates how borrower counsel have continually tested the limits of this rule. Fortunately, Florida appellate courts have repeatedly rebuffed efforts to read more into the rule than its plain language dictates. Nonetheless, foreclosure plaintiffs should remain cognizant of the trouble this seemingly innocuous verification rule can present. For more information on consumer finance litigation topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.