Saturday, August 21, 2010

Shuster & Saben obtains dismissal of Foreclosure case due to Lender’s Failure to Verify Complaint.

The Melbourne office of Shuster & Saben obtained a dismissal of a Brevard County foreclosure complaint based upon the Plaintiff’s failure to verify the complaint. On February 11, 2010, the Florida Supreme Court’s amendments to Rule 1.110(b) became effective. This new rule requires that in foreclosure cases involving residential real property in Florida the Plaintiff/Bank must Verify the compliant. The pertinent part of the new rules sets froth:

“When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement: ‘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.”

When the firm’s Palm Bay foreclosure client was served with the compliant, they brought the all of the documents they received to the firm’s Melbourne office for a free consultation. The compliant was not titled as a “verified complaint” and no verification was include with the documents the client received. During the consultation we checked the Brevard County clerk of Court on-line docket and confirmed that the lender’s attorney failed to comply with Rule 1.110(b) and had not verified the complaint. The firm moved to dismiss the case in April and on June 8, 2010 a hearing was held on the motion. In the hearing counsel for the lender argued the rule was not final when the foreclosure complaint was filed. The Court held that rule became final prior to date of the hearing and granted the motion to dismiss with leave to amend. A redacted copy of the order can be viewed using the link below.

Order Granting Motion to Dismiss

The Foreclosure defense attorneys at Shuster & Saben have offices in Miami, Doral, Plantation / Fort Lauderdale, and Melbourne. We are also available for consultation in Boca Ration, West Palm Beach, Naples, Bonita Springs, and Orlando. Homeowners who had foreclosure cases failed against them after February 11, 2010 that were not verified can e-mail with any additional question or leave a comment on this blog page.