Florida Supreme Court Changes Rules on Banks
If you have been reading this blog regularly, or if you have just skimmed the articles, you probably have heard that the Florida Supreme Court (FSC) has a task force that was working hard last year at trying to come up with ideas to break the log jam of foreclosure cases strangling Florida’s courts. Along with recommending mediation in all new foreclosure filings (a recommendation adopted by the FSC in December of 2009) one of the proposals was for a change to the Florida Rules of Civil Procedure and the FSC approved forms published for use in accordance with the rules. These proposed amendments were fast-trascked by the Supremes in order to have them implemented as soon as possible.
On February 11, 2010, the Florida Supreme Court issued its written opinion adopting the proposed rule changes in their final forms. The most significant change was an addition to Florida Rule of Civil Procedure 1.110(b), which added language that all new foreclosure complaints filed in the state had to be verified, which means that they must be attested to by the Plaintiff, asserting that all the information in it is true and correct, under penalty of perjury. In its opinion, the Justices explained that this was being done to encourage the banks to ensure that they had all the proper documentation proving their claims to be able to foreclose on the subject property BEFORE commencing a suit. The Justices also noted that foreclosure complaints frequently contain contradictory statements where in one count, the bank claims to own the note and mortgage, and in the next count, they are asking the court to reconstruct a lost note and/or mortgage!
The significance of this requirement should not be understated. The FSC is threatening banks with perjury charges if they continue to bring their frequently incorrect and fraudulent cases before Florida courts, and at the same time, sending those courts a signal through this rule change to deal harshly with Plaintiffs that are clearly abusing the judicial system. This should start getting interesting soon…
Other changes were less dramatic, but potentially just as important for homeowners. One change homeowners in foreclosure definitely need to be aware of, is the change to form 1.996(b), Motion to Cancel Foreclosure Sale. The previously approved forms did not require very much in the way of grounds for requesting the cancellation, which the Justices felt may allow for cancellation of sales without valid grounds. The new forms will require more information.
Lastly, a modification of the form filed by process servers when they are unable to personally serve an individual were modified to require more information from the process server. Since many foreclosure actions are done through a process called “service by publication” the FSC felt homeowners and their attorneys should have more information available to them to determine whether the attempts at service were sufficient.
The full text of the opinion (Docket number SC09-1460) with the actual changes adopted, can be viewed at:
http://www.floridasupremecourt.org/decisions/opinions.shtml
