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Verification of complaints: banks have to follow the rules in Pasco County

by Mike on December 15, 2010

Rules are meant to be followed in Pasco County

Unlike in Lee County, the judges in Pasco County expect banks to follow the rules in foreclosure cases.

The verification rule and its critics

Earlier this year, the Florida Supreme Court ruled that plaintiffs in foreclosure cases had to verify the foreclosure complaint—in other words, they had to swear that the facts in the complant are true. Since this is the same way they eventually have to prove their case, you’d think they wouldn’t mind this requirement. You’d be wrong. They hate having to verify complaints.

One foreclosure mill, Shapiro and Fishman, actually said it was impossible to swear that their foreclosure complaints are true. Shapiro and the other mills fight like hell to avoid having anyone swear to the truth of their complaints.

Our motion to strike

Some law firms try to get cute—they’ll provide a separate document purporting to “verify” another. Or they’ll try to cherry-pick facts and verify some but not others. Or they’ll have a lawyer verify to the best of the lawyer’s “knowledge and belief”—a practice some judges call a “hedged” verification. One of my recent cases with Ben-Ezra & Katz had a couple of those same tricks—so I asked the court to strike the complaint from the record and force the bank to do it right.

And so it did. This order granting my motion to strike the unverified complaint [.pdf] not only rejects the tricks some banks’ lawyers like to play, but also sets out some very specific requirements that they have to follow when they do file a complaint.

Effective on February 11, 2010, the Florida Supreme Court amended the Rules of Civil Procedure to require that all complaints in foreclosure actions be verified. In Re: AMENDMENTS TO THE RULES OF CIVIL PROCEDURE, 2010 WL 455295 (Fla. 2010) [35 Fla. L. Weekly S317a]. Plaintiff has supplied the Court with a document purporting to verify the complaint. That document is a separate document from the complaint and contains language that the verification is to the best of the signer’s knowledge and belief… This court finds that such a “knowledge and belief” verification fails to meet the purpose and letter of the amended rule.

(Emphasis mine). The court went on to reiterate the purpose of the verification rule:

The primary purposes of this amendment are (1) 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; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded “lost note” counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations.

And why does this purpose matter? Because the “hedge” verification, according to the court, makes it a pointless exercise:

A verification upon information and belief frustrates these purposes.

Supplying a separate sheet of paper for the verification also frustrates the purpose, because there’s no way to tell if the person signing actually read what they’ve signed. (We’ve had this problem before.)

The requirements of Fla. Stat. § 92.525 (b) (2) also state that a verification “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.” Providing a separate sheet of paper does not comply with this requirement.

So the complaint needs to be verified, it can’t be done on “knowledge and belief”, and it has to be part of the complaint itself, not some other piece of paper floating around loosely somewhere.

And most important, even a bank has to follow the rules in Pasco County.

Want to know more? Contact us at Ricardo & Wasylik, PL.

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