New Florida Foreclosure Defense Rule from Florida Supreme Court

A new method to dismiss a Foreclosure Complaint in Florida that is just catching is to apply an amended rule put into effect by the Florida Supreme Court on February 11, 2010.  This can be an important tool to delay the foreclosure and get that short sale done and the "window of opportunity" is right now.

 

The rule was incorporated into the Florida Rules of Civil Procedure at Rule 1.110(b).  The new language requires that a residential foreclosure (note that this does not say primary residential foreclosure) now requires that it be "verified" by the filing party (or attorney).

 

 

 The purposes of this according to the rule making opinion are stated as:

1. To provide an incentive for the lender to investigate and verify the ownership of the promissory note and ensure that the allegations in the foreclosure complaint are accurate.

2.  To reduce the time the court wastes on inappropriately plead "lost note" allegations.

3.  To prevent reduce the number of suits filed by the wrong lenders.

4.  To give the court the ability to sanction lenders and attorneys that make pleadings that are incorrectly stated.

The verification must be made a part of each complaint and it must have specific language.  If your seller was served with a residential loan foreclosure suit which was filed after February 11, 2010, you should look for this verification.  The specific verification must say, "Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief".

Chances are you are not going to find it.  In all the foreclosure complaints I have seen filed since February 11th, only one complaint complied with the new rule by having the verification.

So what if your complaint is missing the verification?  Your attorney should file a motion to dismiss as this is material a procedural defect.  The likely result will be the court will allow the lender to amend the complaint to include the verification.  But this entire process could take weeks or months - time you and your seller need to work on the short sale - or modification of loan.

The full opinion is available at In RE: Amendments to Florida Rules of Civil Procedure

 The good news is now YOU know about this deficiency in the lender's initial complaint - the bad news is now the LENDER knows about it too............

Copyright 2010 Richard P. Zaretsky, Esq.

Be sure to contact your own attorney for your state laws, and always consult your own attorney on any legal decision you need to make.  This article is for information purposes and is not specific advice to any one reader.

Richard Zaretsky, Esq., RICHARD P. ZARETSKY P.A. ATTORNEYS AT LAW, 1655 PALM BEACH LAKES BLVD, SUITE 900, WEST PALM BEACH, FLORIDA 33401, PHONE 561 689 6660  RPZ99@Florida-Counsel.com - FLORIDA BAR BOARD CERTIFIED IN REAL ESTATE LAW - We assist Brokers and Sellers with Short Sales and Modifications and Consult with Brokers and Sellers Nationwide!  Shortsales@Florida-Counsel.com  New Website www.Florida-Counsel.com. 

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