Tuesday, May 7, 2013

Verification of Complaint

Florida’s Fifth District Court of Appeal just issued an opinion in U.S. Bank, N.A. v. Wanio-Moore which seems to indicate that anyone can verify a foreclosure complaint consistent with the requirements of Fla.R.Civ.P. 1.110(b).  In fact, that person need not specify his/her position or title with that verification, as a mere signature is sufficient.  In the words of the Fifth District, “the trial court erred in concluding that a foreclosure verification must state must state the signer’s position” and “the rule does not require any information about the signer’s positional authority.” http://www.5dca.org/Opinions/Opin2013/040113/5D12-1746.op.pdf

Florida’s Second District Court of Appeal in Deutsche Bank Nat’l Trust Co. v. Prevratil, where the Second District ruled that Deutsche Bank could satisfy its obligation to verify the foreclosure complaint under Fla.R.Civ.P. 1.110(b) by having its servicer and attorney-in-fact, Select Portfolio Services, sign the verification. http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/March/March%2008,%202013/2D12-2030.pdf

Florida courts have long required some type of evidence – certainly something more than the filing of a complaint – to support a conclusion that one is “likely” to prevail.  See City of Jacksonville v. Naegele Outdoor Advertising Co., 634 So. 2d 750 (Fla. 1st DCA 1994).