Brevard County Foreclosure Court Holds Banks and Fraudclosure Mills' Feet to the Fire
The Brevard County Mortgage Foreclosure Division issued its third revised policies and procedures last month. Excerpts from these policies and procedures are posted below, along with bold highlights and italics to make for a quicker read:
Affidavits/Acknowledgements
The Court continues to see hybrid jurats on affidavits and some affidavits which conclude with “to the best of my knowledge and belief.” To be an affidavit, the Notary Public or other officer taking the oath must state in the jurat that the party was sworn and that the matters in the affidavit are true.
There also appears to be a misconception as to the meaning of a verified pleading when allowed by a statute or rule of procedure. There also appears to be a misconception of the meaning of language necessary for an oath or affirmation versus an acknowledgement. The question arises frequently in certain actions under the prejudgment writ of replevin statute and prejudgment writ of garnishment statutes.
An oath or verification requires a swearing or affirmation which would subject the person signing the pleading to a prosecution for perjury if the facts sworn to be true are false and the person knew they were false when
sworn to or affirmed.
An acknowledgement is a statement by a person qualified to take oaths andacknowledgements that the person purporting to sign the document (such as a deed) produced identification or was known personally and stated that he or she was the person who signed the document, not that the content of the
document is true.
An oath or verification which is qualified by “to the best of my knowledge and belief” does not fulfill the requirements of verification or oath or affirmation unless specifically permitted by the applicable rule or statute such as a personal representative of an estate who cannot have personal knowledge of all the facts but must rely on others. See Rule 5.020(e), Fla. Prob.R. and Section 731.104, Florida Statutes 2009 as examples.
A recent change in Rule 1.10, Fla.R.Civ.P. adds the following language:
When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document 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.”
This is allowed because the affiant could not have personal knowledge of all the facts but must rely upon others.
The standard form for an oath or affirmation is substantially as follows:
Long form (preferred):
“Before me, an officer duly qualified to take oaths, personally appeared _______________, (known by me
personally) (who produced identification), and after being placed under oath, swears or affirms that the facts stated above are true and correct.”
Short form:
“Sworn to and subscribed before me”
An acknowledgement is totally different. A representative form is as follows:
“Before me, an officer duly qualified to take oaths and acknowledgements, personally appeared
________________, (known by me personally) (who produced identification) and acknowledged before me that he/she was the person who signed the foregoing instrument.
Section 92.525, Florida Statutes 2009, defines verified pleadings or documents as the word is used in statutes, rules, etc. It includes an oath or affirmation before an officer qualified pursuant to Section 92.50, Florida Statutes, OR a written declaration stating “under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true,” followed by the signature of the person making the declaration. The operative language is “under penalties of perjury” because this takes the place of an oath or affirmation before an official and allows a verification which is untrue to be prosecuted as perjury. See Section 92.525(3) Florida Statutes, 2009.
To only state that the facts are true and correct is insufficient and does not constitute a verified pleading. The statement must be under oath or affirmation before an authorized officer OR be verified by the words, “UNDER PENALTIES OF PERJURY.”
Various hybrid forms of purported jurats are in use and do not meet the requirements. One seen often is as follows:
“Before me appeared _______________________ who acknowledged before me that he/she signed the above [document] and did take an oath.”
The missing part is that the person did not say that the statements alleged were true or what oath the person took. Could it be an oath that the person is who he/she said he/she is?
Please make sure your clients and employees utilize a proper oath or affirmation when signing affidavits. Otherwise your case may be delayed as defective affidavits create additional work and time on the part of all concerned.
LOST DOCUMENTS:
The Court is experiencing cases in which the promissory note secured by the mortgage is alleged to have been lost, stolen or destroyed. The practice is to attach to the complaint a “ledger sheet” purporting to list origination date, amount of the loan, a payment amount and due date. These exhibits are not even sworn to. The Court requires what the statute, §673.3091(2), Florida Statutes (2009), requires. That is a person seeking to reestablish and enforce such note must PROVE the terms of the instrument and the person’s right to enforce it.
The Court will require an affidavit or live testimony of a person who was personally familiar with the terms of the note by virtue of preparing it or reading it or other reliable evidence of knowledge of its terms in order to “prove” the terms. This is an evidentiary issue and, unless proved, will neither be reestablished nor enforced.
The Court has observed that many law firms submit an affidavit of indebtedness in a summary judgment motion in which the affiant is described as an “agent” of the Plaintiff/Servicer; attorney in fact for servicer; limited signing agent, etc. The affidavit of indebtedness must be accurate and must clearly identify who the signing affiant is employed by and affiant’s position with his employer and that the affiant has personal knowledge of the account. An officer of the Plaintiff is always preferred. One prevalent affidavit states that the affiant is an employee of the servicer but never identifies who the servicer is.
Counsel should review Rule 1.510, Florida Rules of Civil Procedure periodically to make sure the affidavits filed will comply with summary judgment requirements. Rule 1.510(c) requires that you file your motion and shall also send copies of all summary judgment evidence relied upon and not already filed with the Court, at least twenty (20) days prior to the hearing. This includes affidavits of indebtedness, attorney fee affidavits, corroborating attorney fee affidavits and unless being reestablished when actually lost, destroyed or stolen, the note and mortgage.
If you schedule the motion before discovery is closed, the motion may be premature. The following cases hold that summary judgment should not be entered while discovery is pending because it is premature. Sanchez v. Sears, Roebuck and Co., 807 So.2d 196 (Fla. 3rd DCA 2002); Kimball v. Publix Supermarkets, Inc., 901 So.2d 293 (Fla. 2nd DCA 2005), Henderson v. Reyes, 702 So.2d 616 (Fla. 3rd DCA 2008); and Payne v. Cudjoe Gardens Property Owners Association, Inc., 837 So.2d 458 (Fla. 3rd DCA 2002).
Any affirmative defenses raised must be factually refuted or disproved or you must establish that the defenses are insufficient as a matter of law. This may be done prior to the motion and is encouraged rather than trying to do it in a Motion for Summary Judgment. However, it can be a part of the Motion for Summary Judgment.
Rule 1.510(e) requires that supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant iscompetent to testify to the matters stated therein. If the affidavit would not be admissible at trial, the Court cannot consider it.
In the future, such affidavits MUST identify the employer, and if not the Plaintiff, the name of the entity with whom the affiant is employed and the relationship to the plaintiff. They must be made by a custodian of the records or one with personal knowledge of the records and business practices relating to the business records, and must delineate how the affiant has the knowledge to be competent to sign the affidavit as proof of the amounts due. Otherwise it will not suffice to support a Motion for Summary Judgment. An affidavit by an “attorney-in-fact” will not support a Summary Judgment.
PROOF OF STANDING:
Many notes are filed without a proper endorsement to Plaintiff. Those notes do not self prove standing even if there is an assignment of mortgage filed which pre-dates the filing of the complaint. In those cases, the Court requires an Affidavit or other satisfactory proof that the note and mortgage was actually delivered to Plaintiff or that Plaintiff was given the right to enforce the note and mortgage, specifying the date of receipt if delivered or the name and address of the party giving Plaintiff the right to enforce it along with the date of the acquisition of the right and a general statement that the person providing the information has personal knowledge and is an officer of Plaintiff, specifying the office.
If the note is endorsed to Plaintiff or if Plaintiff is the original mortgagee or if endorsed in blank (a “bearer” endorsement), the Affidavit or other proof is not required, unless challenged by a Defendant. If the Plaintiff is Plaintiff due to a merger of the entity holding the note, evidence of the merger must be filed. It should be noted that lack of standing is an affirmative defense that should be filed with the answer. See Glynn v. First Union Nat’l Bank, 912 So.2d 357 (Fla. 4th DCA 2005); and Kissman v Panizzi, 891 So. 2d 1147 (Fla. 4th DCA 2005).
ATTACHMENT OF NOTE AND MORTGAGE TO COMPLAINT:
Arguments are being made to the Court when Plaintiff fails to attach a copy of the note to the complaint, that later filing the original note in the Court file and giving notice of its filing to the Defendants cures the failure to attach it to the complaint. Cited for this proposition is Hughes v. Home Savings of America, 675 So.2d 649 (Fla. 2nd DCA 1996) which distinguishes Eigen v. Federal Deposit Insurance Corporation, 492 So.2d 826 (Fla. 2nd DCA 1986).
In Hughes, the Plaintiff had attached a copy of the note and mortgage to the original complaint. An amended complaint was filed and neither the note nor the mortgage was attached to it. The Court held that the defect
could have been cured by filing the original note and mortgage in the court file with notice given to Defendants. In Holmes, the notice of filing of the original documents was not served on defendants. In Eigen, the same fact circumstance occurred except that the Defendants were served notice of the filing of the documents which cured the defect. The fact that the note and mortgage were attached to the original complaint does not breathe life into the amended complaint which was void of exhibits.
Both cases cited dealt with amended complaints, not the original complaint. Failure to attach copies of the documents sued upon may fail to state a cause of action. This court questions the logic in the case cited but until the Fifth District rules on this issue, the court is bound by the ruling of the Second District.
VERIFICATION OF COMPLAINTS FOR FORECLOSURE RESIDENTIAL PROPERTY:
A change in Rule 1.110(b), Fla.R.Civ.P., was effective on February 11, 2010. The rule amendments are as follows:
When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified.
When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement:
“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.”
It should be noted that the rule provides that the “document filed” (the complaint) shall include the oath or affirmation of the required language. In SC 09-1460 and SC 09-1579, The Florida Supreme Court commented on why the amendments were added. The primary purpose is to provide incentive for the Plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; to conserve judicial resources that are currently being wasted on inappropriately pleaded “Lost Note” counts and inconsistent allegations; to prevent the wasting of judicial resources and harm to Defendant resulting from suits brought by Plaintiffs not entitled to enforce the note; and to give the trial courts greater authority to sanction Plaintiffs who make false allegations.
It is now the practice by some Plaintiff’s lawyers to file a “Verification” as a separate document. It is not even attached to the complaint. Many do not even make reference to the complaint filed but state merely “I have read the foregoing.” A Plaintiff could produce hundreds of these separate pages and send them to their lawyers to file with each complaint, thereby circumventing the express purposes of the rule change. Some recite “I have read the complaint” but are still on a separate page. The filing of a separate page lends itself to abuse of the process and the express purpose of verification.
Section 92.525(2), Florida Statutes, verification of documents recites the way a document may be verified. It then states:
….the written declaration shall be printed or typed at the end of or immediately below the document being verified and above the signature of the person making the declaration.
This Court will require that the verification be made on the complaint filed, not a separate document. The Court also requires that the verification be signed by an officer of Plaintiff, not an assistant officer, foreclosure specialist or other person whose duties are unclear as to how they would know that the information in the complaint is accurate. Verifications signed by Plaintiff’s lawyer are not acceptable.
Complaints filed which require verification are subject to dismissal by the court if not in compliance with the rule and the Supreme Court’s stated purposes.
ASSIGNMENT OF BIDS/ MOTIONS TO VACATE:
The Court is encountering cases in which the Plaintiff assigns the bid at the judicial sale to another entity such as the Secretary of Veterans Affairs, Federal National Mortgage Association, etc. and a certificate of title is issued in the assignee’s name as a result.
Later, the Plaintiff files a Motion to Vacate the Final Judgment, sale, and certificate of title and the motion purports to include the assignee but there is nothing in the record to verify that the attorney is representing the title holder or bid assignee. Due process and property rights may be impacted by entering the order without the assignee’s written joinder and consent, especially when title has vested in the assignee by virtue of the certificate of title. The Court has notified counsel of this concern.
However, new motions are filed in the name of the Plaintiff and title holder when the record does not show that Plaintiff’s attorney represents the title holder and no written consent or joinder in the motion by the titleholder is provided.
If a bid has been assigned by the Plaintiff and Plaintiff wishes to vacate the sale and/or certificate of title if one has been issued, the Plaintiff’s law firm must represent the assignee/titleholder in the record or obtain and file the written consent and joinder of the assignee/titleholder along with the motion.
The entire text is below. Additionally, the original link can be found here. The policies and procedures have been revised three times within the last five months. If there is another revision, it will be posted on this blog.
