Archive for April 9th, 2013

Can Anyone Verify a Foreclosure Complaint?

Florida’s Fifth District Court of Appeal just issued an opinion in U.S. Bank, N.A. v. Wanio-Moore which seems to indicate that anyone can verify a foreclosure complaint consistent with the requirements of Fla.R.Civ.P. 1.110(b).  In fact, that person need not specify his/her position or title with that verification, as a mere signature is sufficient.  In the words of the Fifth District, “the trial court erred in concluding that a foreclosure verification must state must state the signer’s position” and “the rule does not require any information about the signer’s positional authority.”

I find this opinion disappointing on many levels.

First off, do you notice how the homeowner represented herself pro se.  Not to criticize pro se representation (okay, I’m criticizing it), but does anyone think this homeowner made the best possible argument to the appellate court, one an attorney with experience on these issues would have made?  I sure don’t.  It’s a cryin’ shame to have important issues like this – impacting many thousands of pending foreclosure lawsuits – decided on an appeal where a lawyer wasn’t even involved.

As for the substance of the ruling, read it.  Do you know what troubles me?  The seeming indication that anyone can verify a foreclosure complaint.  The way this opinion is written, one (at least arguably) need not be an officer, director, employee, or agent of the plaintiff – or have any relationship with the plaintiff at all.  In fact, the signer need not include his/her title or position in the verification at all.  Hence, accepting this literally, one could argue that the bank can go to a local tavern and have a random drunk sign the verification – and that said verification is all that is required by Rule 1.110(b).

Did we already forget the reasons Rule 1.110(b) was created in the first place?  This was the first and only time in the history of Florida jurisprudence that the Florida Supreme Court created a rule of procedure to protect the courts and the public from an industry’s widespread use of false documents.  Are we really at the stage where we can act like any old signature will do – without even clarifying who is signing?

I sure don’t think so.  That’s why I filed this Motion to appear as an Amicus and a Motion for Rehearing and Clarification.

Please bear in mind … this was not my case.  Hence, there’s a fair chance the appellate court will deny my motions without explanation.  That said, I just couldn’t sit back and do nothing.  Law is being created adverse to homeowners, and the banks are very good at choosing to go to the appellate courts on those cases where a competent defense counsel is not involved.  As a result, I have to share my views in this manner or else I may never be heard.  But I’m not giving up … and neither should you.

Mark Stopa

Posted in Main | 1 Comment »