Archive for January 18th, 2013

Order to Show Cause Requires REAL Verification

Florida Statute 702.10 sets forth a procedure by which a foreclosure plaintiff can request an expedited foreclosure.  Under the statute, if the plaintiff files a motion and follows the procedures in the statute, the Court will enter an Order requiring the defendant to come to court and explain why a Final Judgment of Foreclosure should not be entered.  I’ve seen foreclosure plaintiffs try to utilize this procedure every so often, but they always do it wrong!  Quite simply, they don’t follow the procedure in the statute.

Under the plain language of the statute, an Order to Show Cause can only be entered when the plaintiff files a “verified” pleading.  Even though Fla.R.Civ.P. 1.110(b) authorizes foreclosure pleadings to be verified on “knowledge and belief,” the verification requirement in Fla. Stat. 702.10 is different.  For a foreclosure plaintiff to avail itself of the expedited process set forth in the statute, it must verify its pleading in the manner required by Fla. Stat. 92.525, i.e. under penalty of perjury.

That analysis might sound wrong in light of the Second District’s recent rulings on verification, which allow foreclosure pleadings to be verified on “knowledge and belief.”  However, those decisions concerned the verification obligations in the normal, run-of-the-mill case, not the special procedure set forth in Fla. Stat. 702.10.

The plaintiffs’ failure to recognize/apply this distinction has always irked me, so I was pleased when one local judge agreed with it.

Still don’t understand?

Take a look at the Objection that I filed when a foreclosure plaintiff in one of my cases filed a Motion for Order to Show Cause.  Then check out this Order Denying Motion for Order to Show Cause.  Clearly, this learned judge agreed with my view that foreclosure plaintiffs who wish to avail themselves of the procedure in Fla. Stat. 702.10 must file a verified pleading (as defined by Fla. Stat. 92.525), not one verified on “knowledge and belief” (under Rule 1.110(b)).  I raise this distinction, of course, because it’s a useful tool for your toolbox if you’re defending an Order to Show Cause and, frankly, because I’ve never seen a foreclosure plaintiff comply with this requirement.

Mark Stopa

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