Is a Foreclosure Plaintiff “likely” to prevail merely by filing suit?

The foreclosure world is abuzz this week on the heels of Friday’s decision from 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.  While some (plaintiffs’ attorneys) would argue this decision clarifies the question of who can verify a foreclosure complaint, I think the decision poses more questions than it answers.

For instance, the Second District explains at length that SPS was authorized to verify for Deutsche Bank because a written Power of Attorney from Deutsche Bank, which POA was filed in the case, authorized such.  For me, that just begs the question – can an attorney-in-fact verify for the Plaintiff under Rule 1.110(b) only when the power of attorney is filed?  The Prevratil decision does not answer that question.  Likewise, the Second District does not explain whether a servicer could verify outside the confines of an attorney-in-fact relationship.  Suffice it to say that until these questions are answered on the appellate court level, the arguments will continue in lower courts throughout Florida.

These issues aside, what really struck me about the Prevratil decision was one sentence:

If Deutsche Bank filed the Amended Complaint as directed by the trial court, it likely would obtain a foreclosure judgment. 

Think about that sentence for a minute.  And look at the opinion.  Do you notice how that statement is unsupported by any legal citations or facts?  Yes, incredibly, the Second District has concluded a foreclosure plaintiff is “likely” to prevail merely by filing a lawsuit.  No factual explanation.  No legal citations.  Just “likely” to win.

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