Friday, May 11, 2012

Local: “Verified” in a Foreclosure Case – What Does it Mean?

Apr. 10, 2012: “Verified” in a Foreclosure Case – What Does it Mean? by Mark Stopa

We all see the term “verified” in residential foreclosure lawsuits on a regular basis … but what, exactly, does it mean?  Years ago, there wouldn’t have been a question in this regard.  In years past, “verified” meant under oath, or under penalty of perjury, as provided under Fla. Stat. 92.525 … the equivalent of live testimony in open court.  Now?  The law is much less clear, so much so that plaintiffs’ lawyers are making arguments that are contrary to law.

The ambiguity began in February, 2010, when the Florida Supreme Court, in response to widespread robo-signing, began requiring that all plaintiffs in residential foreclosure cases verify the foreclosure complaints they file.  The intent was raise the bar … to create an additional hurdle for plaintiffs to follow to ensure they would investigate their lawsuits before filing them (and to eliminate garbage pleadings).

The problem is that the verification required under Rule 1.110(b) is not a normal verification, but a special one created just for purposes of residential foreclosure complaints.  To illustrate, Fla. Stat. 92.525 requires a verification be made under penalty of perjury, i.e. sworn to be “true and correct,” whereas Rule 1.110(b) permits a lesser verification, i.e. “true and correct” to the best of one’s “knowledge and belief.”
The question hence becomes … in what contexts is a verification sufficient if done “to the best of one’s knowledge and belief,” and when is the normal verification under Fla. Stat. 92.525 required?  Two specific situations come to mind – Summary Judgments, and Orders to Show Cause.

Plaintiffs’ attorneys will undoubtedly point to a recent decision from Florida’s Second District, which ruled that verifications on “knowledge and belief” are sufficient in a residential foreclosure complaint, in support of their position that verifications on “knowledge and belief” are satisfactory.  See Trucap Grantor Trust 2010-1 v. Pelt, 37 Fla. L. Weekly D 622 (Fla. 2d DCA 2012).  However, Trucap merely says a verification on “knowledge and belief” is sufficient in the run-of-the mill foreclosure pleading.  It sheds no light whatsoever on the question of whether this type of verification is authorized in other contexts, i.e. Summary Judgment or an Order to Show Cause.

For instance, when a foreclosure case goes to summary judgment, is this type of equivocal verification allowed?  And what about when a plaintiff seeks an Order to Show Cause under Fla. Stat. 702.10 – is the qualified verification under Trucap sufficient?

In each case, I think the answer is “no” – the verification must be unequivocal, i.e. under oath, as set forth in Fla. Stat. 92.525.  Here’s why.

Fla. Stat. 702.10 has been in existence for a long time – long before Rule 1.110(b) was ever created.  In my view, the law clearly requires, to obtain an Order to Show Cause in a residential foreclosure case, that a plaintiff verify the complaint consistent with Fla. Stat. 92.525, not the lesser verification under Rule 1.110(b).  In fact, at least one Florida decision has specifically ruled that the verification must be done in this manner.  See Muss v. Lennar Fla. Partners I, L.P., 673 So. 2d 84 (Fla. 4th DCA 1996) (not allowing verifications “on information and belief” in the context of an Order to Show Cause).

Plaintiffs’ attorneys will argue Muss was decided before Rule 1.110(b), and that is true.  However, the entire purpose of Rule 1.110(b) was to raise the bar for plaintiffs in foreclosure cases – not to lower it.  Hence, to argue 1.110(b) allows a qualified verification in the context of an Order to Show Cause, you’d necessarily be arguing that the Florida Supreme Court lowered the bar via Rule 1.110(b) for Orders to Show Cause without mentioning Orders to Show Cause at all.  In my view, there is no way the Florida Supreme Court changed the requirements of Fla. Stat. 702.10 or overruled Muss without explicitly stating so.  Rule 1.110(b) requires the verification set forth in Trucap without changing the verification requirements of Fla. Stat. 702.10 and Muss.

So what does this mean?  If you’re facing an Order to Show Cause in a residential foreclosure case, make sure you argue that Rule 1.110(b) might be sufficient for a run-of-the-mill foreclosure complaint, but it’s not sufficient to enable a plaintiff to obtain an Order to Show Cause.  For that, an unequivocal verification, as set forth in Fla. Stat. 92.525, is required – not merely one on “knowledge and belief.”  At this point, there is not a written opinion from a Florida district court which makes this distinction.  Trust me, though – it will happen at some point.

A similar clarification is important when dealing with motions for summary judgment.  After all, long-standing Florida precedent requires that the verifications used for purposes of summary judgment be unequivocal.  Quite simply, it is not sufficient for a plaintiff or a defendant to give an affidavit “on information and belief,” or “on knowledge and belief” – the affidavit must be verified under oath.

To illustrate, in Ballinger v. Bay Gulf Credit Union, 51 So. 2d 528 (Fla. 2d DCA 2010), the Second District reversed a summary judgment because it was based on a verification done “on knowledge and belief.”  In other words, the court ruled the evidence supporting summary judgment was not sufficient because it was not “evidence” at all given the qualified verification.

As such, if you’re dealing with a motion for summary judgment in a mortgage foreclosure case, don’t allow the bank’s attorney to argue they’ve proven their right to summary judgment (or proven you’re not entitled to summary judgment) because their complaint is verified.  After all, that complaint is probably verified “on knowledge and belief,” and that type of verification is simply not allowed in the summary judgment context.

Again, there is not yet a Florida case which makes this distinction, but I assure you – it’s coming.

Mark Stopa

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