A Whole New Round of Motions to Dismiss

Posted on June 15th, 2013 by Mark Stopa

As we all know by this point, Florida Governor Rick Scott has signed HB87 into law.  There are aspects of the bill that I, as a consumer advocate and foreclosure defense attorney, don’t like.  Portions of the bill, however, are quite favorable for consumers.  In fact, this new law gives Florida homeowners a whole new round of defenses, effective immediately.

Under Fla. Stat. 702.015, if a foreclosure plaintiff files a complaint after July 1, 2013 and is the “holder” of the original promissory Note, that plaintiff is required to certify under penalty of perjury that it is in possession of the Note, the name and title of the individual giving the certification, the name of the person who verified the plaintiff’s possession, and the date on which possession was verified.

If a foreclosure plaintiff is seeking to re-establish a lost Note, the obligations are even more onerous.  In that event, an affidavit under penalty of perjury must be attached to the Complaint, and that affidavit must: (a) detail a clear chain of all assignments, transfers, or assignments of the Note; (b) set forth facts showing the plaintiff is entitled to enforce the lost Note; and (c) attach documents to the affidavit which support the plaintiff’s claims.

I’m very confident the banks are unprepared to comply with these requirements.  From what I know of the banking industry, the foreclosure complaints they’re filing now were drafted months ago – before this new law came into effect.  Hence, it’s likely that many if not most of the foreclosure complaints filed in Florida since June 7, 2013 will be subject to dismissal for failure to comply with these new requirements.

From what I know of the banking industry, I suspect it will take many weeks, perhaps months, before the Complaints the banks file comply with these requirements in Fla. Stat. 702.015.  As a result, so long as these complaints are deficient, Florida judges will be obligated to grant motions to dismiss these complaints.

HB87 isn’t all bad, folks.  This is obviously good news.

To answer some obvious questions …

These requirements apply to complaints filed after July 1, 2013.  If your complaint was filed before then, these aspects of 702.015 don’t apply.

If a foreclosure lawsuit was filed before July 1, 2013 but the plaintiff files an Amended Complaint after that date, do these portions of 702.015 apply?  The statute doesn’t specify, but I think so.  The statute is remedial in nature, so I’d think most judges will require that amended complaints filed after July 1, 2013 include these pleading requirements – just as most judges I know required Amended Complaints filed after the verification requirement in Rule 1.110(b) be verified.

Is the “certification” and “affidavit” required by Fla. Stat. 702.015 different than the verification requirement of Fla.R.Civ.P. 1.110(b)?  Absolutely.  The verification requirement of Rule 1.110(b) is quite vanilla.  The statutory requirements here are much more onerous.  Plus, while the Rule allows verifications on “knowledge and belief,” the statute requires unequivocal verifications.  This is, truly, an obligation to sign under penalty of perjury.

The banks don’t like signing under penalty of perjury (crooks never do), so we’ll see how they handle these new requirements.  Eventually, I suspect they’ll start complying with the new certification and affidavit requirements.  Until they do, however, make sure you’re asking that foreclosure complaints be dismissed for failure to comply with the new requirements of Fla. Stat. 702.015.

 

 

Mark Stopa

www.stayinmyhome.com

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