Case Dismissed WITHOUT Leave to Amend | FL Rule 1.110(b) Verification of Mortgage Foreclosure Complaint


This comes in from Mark Stopa…

Refusal to Verify Means Dismissal – Without Leave to Amend

One of my ongoing frustrations as a foreclosure defense attorney is seeing banks and their lawyers repeatedly and systematically refuse to comply with basic rules of procedure and/or Florida law.  One common example is their repeated refusal to verify their Complaints in residential foreclosure cases, as required by Fla.R.Civ.P. 1.110(b).  This is a really simple thing to do (or, at least it should be, if banks are acting appropriately), yet banks and their lawyers routinely file foreclosure lawsuits on residential property without a verification.  Respectfully, there is absolutely no excuse for this.

When any party in a Florida lawsuit fails to comply with a rule of procedure or an Order of the Court, e.g. the requirement in 1.110(b) to verify foreclosure complaints, dismissal is an authorized remedy.  See Fla.R.Civ.P. 1.420(b).  Unfortunately, all too often, when banks fail to include the requisite verification, judges give them a second chance, giving them leave to file an Amended Complaint.  Essentially, this means the bank can fix the problem within the confines of the pending lawsuit.

Respectfully, this drives me nuts.  Banks and their lawyers are willfully and intentionally violating a rule of the Florida Supreme Court on a routine, systematic basis.  Why is there no sanction for this?  Why should they get a “do-over”?

When this happens, I believe dismissal with prejudice is an appropriate sanction.  At minimum, the dismissal should be without prejudice but without leave to amend.  This way, the banks will have to re-file a new lawsuit, with a new case number, and pay a new filing fee.  If more judges ruled this way, like this judge just did, then banks and their lawyers would learn their lesson (presumably) and stop refusing to comply with basic rules of procedure.

The judge’s Final Order of Dismissal sets forth this precise rationale.  I’ve been waiting for a ruling like this for months – what a joy to read.  After months of watching banks’ willful misconduct go unpunished, it’s great to see a Florida judge enter a sanction for such obvious misconduct.

Mark Stopa

www.stayinmyhome.com

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4closureFraud.org

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Case Dismissed FL Rule 1.110(b) Bank f America v Nebraska Investments, FDLG

Comments
8 Responses to “Case Dismissed WITHOUT Leave to Amend | FL Rule 1.110(b) Verification of Mortgage Foreclosure Complaint”
  1. l vent says:

    When the rule of law only applies to us and the Constitution only protects them, there is a serious problem in this Country and that needs to be addressed by the U.S. Supreme Court. How could they have been allowed to transfer OUR PROPERTY to other BANKS and INVESTORS using an UNSECURED INSTRUMENT CALLED A NOTE? Because they NEVER RECORDED ANY NOTES they should have NEVER BEEN ALLOWED to TRANSFER OUR PROPERTY to anyone else and that alone should STOP ALL FRAUDCLOSURES. That is SECURITIES FRAUD. The only LEGAL WAY and CONSTITUTIONAL WAY they should have been able to transfer property rights is VIA AN UNIFORM SECURITY INSTRUMENT . Problem is there NEVER WAS ONE THAT EXISTED ON THE WHOLE PLANET. That is why they “LOST TRACK” of THEIR Ownership and CLOUDED TITLE FOR THEM, NOT US.. Not even withstanding the fact that they NEVER SECURED (ASSIGNED) THE MORTGAGE TO THE DEED to create COLLATERAL FOR THEMSELVES so they could participate in the BIGGEST PONZI SCHEME IN HISTORY up on WALL STREET. FRAUD ON TOP OF FRAUD. They are using VERY UNFAIR AND DECEPTIVE PRACTICES A/K/A THE RICO ACT to STEAL OUR PROPERTY. That is completely COMMUNIST and UNAMERICAN. WHERE ARE THE FEDS?

    • Stupendous Man - Defender of Liberty - Foe of Tyranny says:

      “Because they NEVER RECORDED ANY NOTES…”

      Notes are not required to be recorded.

      “They are using VERY UNFAIR AND DECEPTIVE PRACTICES A/K/A THE RICO ACT…”

      RICO specifically involves racketeering. You may be confusing RICO and UDAP, or the Unfair and Deceptive Practices Act. That of course is Federal. Given that foreclosure is handled in state court folks might want to check the local consumer protection laws to see what, if any, state laws there are similar, or identical, to the Federal UDAP.

    • Rj says:

      I don’t understand a thought process like this. There is no requirement for the mortgagor to know if the note is being transferred to another. Frankly, one could argue the only info the mortgagor needs to know is the mailing address of the servicer to whom the mortgage payment should be sent. This isn’t a constitutional matter, despite all your rethoric. On the one hand you talk about the banks having ‘lost track of their ownership and clouded title for them’; on the other hand you talk about the mortgagor as if they are the sole owner of the property without regards to the ownership interest of a third party. It’s pretty simple, really: If you pay your mortgage, you typically don’t end up having your property foreclosed on (notwithstanding the sensationalist news stories of one-off situations where the bank records were incorrect–those situations were rectified and the banks made restitution as appropriate).

      Clouded would be a polite way to describe your posting, which is hardly based in any justifiable legal argument.

      • RAMONA says:

        the banks are foreclosing on homes that are paying their mortgages. Where have you been? the banks are stealing our properties. THE Banks benefit greater if they foreclose and even the courts are depending on the money from them here in florida!!

      • rj says:

        Ramona, this is a ridiculous response. The issues with foreclosures are primarily related to mortgages that were improperly assigned, not with foreclosures on properties where mortgage payments are being made. If it’s your contention that this isn’t the case, you are beyond ill informed.

        In the cases where foreclosure has been initiated for lack of payment: When you can explain why a homeowner that isn’t paying the mortgage payments should be able to retain the property, then you’ll have some credibility. Spurious arguments about a bank ‘stealing’ property hold as much weight in water as a leaky bucket. And so do your comments.

      • lyn says:

        Whoops,

        I think you are totally out of touch. Do you have any idea who financed your “mortgage”? The bank did not! Why should you continue to pay for a mortgage when it has been paid for three times. When you signed your mortgage note the bank stamped paid to the order of and monetized it. Your original unaltered bank note no longer exist. Where is the proof of debt?

      • rj says:

        I know the bank I financed the mortgage with. I know the debt is still outstanding, and that I still owe that debt, because it has not been paid. I have a debt paydown schedule and regardless of whether the note has been sold to another bank or not should not be relevant–the debt to me remains outstanding. The debt has not been paid BY ME. Which means it’s still outstanding. Why do you think the sale of the note to another holder causes your personal obligation to disappear?

        Let’s cut to the chase–you believe ‘proof’ is required to show that you owe; frankly, you KNOW whether you still owe on your mortgage. Your servicer provides a monthly statement which confirms it. You and I will thus disagree as to the morality of walking away from an obligation into which you entered freely and which ultimately others will be forced to pay. Rationalize it how you will, but every other homeowner who doesn’t walk away from their mortgage and prospective homeowners will be paying for these individuals via higher taxes (through the numerous mod programs) and through higher interest rates or a overarching lack of credit being extended to new and existing homeowners.

  2. James M says:

    Two things to note from this order:

    A) It suggests that the attorney may sign the verification. Other courts have found diffrent, that it is the plaintiff who must verify, not their counsel.

    B) Note the last cc at the very very bottom left of the page: The Florida Bar. This should happen more a lot more often.

    Otherwise a very good order.

    I like the bit about the re-hearing being only on the subject of residential or not – but think the court could not actually enforce that section of the order, for a motion to re-hear may be directed to any part of the order hearing. For example the courts improper exclusion of an item of evidence. There again, it certainly informs the Plaintiff on what specific grounds the court is prepared to reconsider the order.

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