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



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