Bringing a Residential Foreclosure Action? You Need a Verified Complaint

In 2010, the Florida Supreme Court amended Florida Rule of Civil Procedure 1.110(b) to include a verification provision in foreclosure complaints. Subsequently and in an effort to expediate the residential foreclosure process in Florida, the Legislature enacted Section 702.015, Florida Statutes, which sets forth additional pleading requirements for foreclosure complaints. In response to the new legislation, the Florida Supreme Court created a new rule for governing foreclosure complaints, Rule 1.115, which includes a new verification requirement.

Florida Rules of Civil Procedure – A Verified Complaint is Required

In 2014, Rule 1.110(b) was amended to remove the pleading requirement for certain mortgage foreclosure actions and incorporated the language in new Rule 1.115. Notably, Rule 1.115(e) provides:

When filing an action for foreclosure on a mortgage for residential real property, the claim for relief shall be verified by the claimant seeking to foreclose the mortgage. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement: “Under penalties 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.”

Although Rule 1.115(e) states that the claim must be verified “by the claimant seeking to foreclose the mortgage,” a plaintiff can delegate its authority to verify their foreclosure complaint to an agent. Wilmington Savings Fund Society, FSB v. Tacoronte, No. 5D19-1326, 2020 WL 1645418 (Fla. 5th DCA 2020) (“As a procedural rule, rule 1.115(e) cannot constrain a claimant plaintiff from delegating to its agent the authority to verify its foreclosure complaint.”).

Why the Change?

The substance of what is now Rule 1.115(e) was originally adopted in 2010 as an amendment to Rule 1.110(b). In 2010, the Florida Supreme Court explained the purpose of a verified complaint in foreclosure actions as follows:

(1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate;

(2) to conserve judicial resources that were being wasted on inappropriately pleaded “lost note” counts and inconsistent allegations;

(3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and

(4) to give trial courts greater authority to sanction plaintiffs who make false allegations.

In re Amendments To The Fla. R. Civ. P., 44 So. 3d 555 (Fla. 2010).

Generally, verification means that the person signing a document swears that they have read the document, and confirms that the facts therein are true and correct based on personal knowledge and belief. Form 1.944(a) Mortgage Foreclosure includes the verification sentence, “Under penalties 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.” Therefore, a plaintiff must appropriately investigate and confirm that the allegations in their foreclosure complaint are accurate or they may face criminal liability.  A plaintiff who knowingly makes a false declaration will be guilty of the crime of perjury by false written declaration, a felony of the third degree. Fla. Stat. Ann. § 92.525(3).

Authors:

• Austin B. Calhoun, Esq.
• Melissa Murrin, JD Candidate 2021