October 25, 2010
As those of you who follow this website know, on February 11, 2010, the Supreme Court of Florida entered an Administrative Order requiring all residential foreclosure complaints to be verified. Foreclosure mills have since been filing alleged “verified” complaints only on “knowledge and belief” and by persons who are not employees of the plaintiff or by employees of the plaintiff’s law Firm.
Judge Anthony Rondolino of the Sixth Judicial Circuit for Pinellas County, Florida says “no” to this procedure. In a 7-page written opinion, Judge Rondolino states that “any verification of a foreclosure complaint must be in conformity with F.S. 92.525 as construed by Moss v. Lennar Florida Partners, 673 So.2d 84 (Fla. 4th DCA 1996)” and that because of this he will reject verifications based on “information and belief” or using language indicating the declaration is only true and correct “to the best of my knowledge and belief”. He will also reject a “verified” foreclosure complaint if it is demonstrated that the person who verified it is counsel of record or an employee of the law firm.
Judge Rondolino’s rationale is grounded upon the Supreme Court of Florida’s directive that the Plaintiff appropriately investigate and verify its allegations (in a foreclosure complaint), and an attorney should not become a witness substituting for these “essential client verifications”.
The case involved a series of assignments and a Deutsche Bank securitization, and facts which indicate that the 2010 post-filing assignment was from a company (New Century Mortgage) which went bankrupt years ago. The Court was concerned with the same concern we here have with assignments from bankrupt “lenders” and have previously raised to the courts in such situations: that there is no proof that the assignor had authority from either the bankruptcy court or the liquidating trustee to dispose of the specific asset of the bankrupt estate (the mortgage loan) to anyone, which would present a disputed issue of material fact precluding summary judgment.
The fact pattern in this case is all too common. What we applaud Judge Rondolino for is holding foreclosing plaintiffs to a real verification, not some phony series of conditional statements by persons unrelated to the transaction. Bravo! We hope that more Florida Judges will adopt this very sound reasoning.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com