DANIEL WILLIAM BECKER, APPELLANT,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE OF THE INDYMAC INDX MORTGAGE TRUST 2007-FLX3, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-FLX3 UNDER THE POOLING AND SERVICE AGREEMENT DATED APRIL 3, 2007; UNKNOWN SPOUSE OF DANIEL WILLIAM BECKER; CITY OF PEMBROKE PINES, FLORIDA; AND UNKNOWN PERSON(S) IN POSSESSION OF THE SUBJECT PROPERTY, APPELLEES
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Daniel Becker appeals a summary judgment foreclosing his mortgage, arguing the lender's complaint was improperly verified because the verification was attached as a separate document rather than incorporated within it. The Florida Fourth District Court of Appeal affirms, holding that Florida Rule of Civil Procedure 1.110(b) does not require verification to be contained within the complaint itself, only that the document include an oath or affirmation.
The court held that Florida Rule of Civil Procedure 1.110(b) contains no requirement that verification be contained within the complaint. The rule requires only that the document include an oath, affirmation, or specified language; it does not prohibit the verification from appearing on a separate page.
[1] A mortgage foreclosure complaint is properly verified when the verification is attached as a separate document, as long as the document includes the required oath, affirm…
[2] Florida Rule of Civil Procedure 1.110(b) does not require that a verification be incorporated within the body of a foreclosure complaint.
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Join FLexlaw to unlock all legal intelligence“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.'”
The court quoted the relevant rule to establish that it requires verification but does not specify that it must be incorporated within the complaint.
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Join FLexlaw to unlock all legal intelligenceBecker defaulted on his mortgage held by Deutsche Bank National Trust Company as trustee. After a default was entered against him for failing to respo…
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Daniel Becker (“the homeowner”) appeals a summary judgment granting a mortgage foreclosure brought by the lender. He argues the trial court erred in entering summary judgment because the complaint was improperly verified and genuine issues of material fact precluded the entry of summary judgment. We find no error and affirm.
After the lender filed a complaint to foreclose the mortgage, the homeowner failed to respond, and a default was entered against him. He then retained counsel, who filed a combined motion to vacate the default, motion to dismiss the complaint, and written opposition to the motion for summary judgment the day before the summary judgment hearing.
The homeowner argued error in the entry of a summary judgment because the lender did not properly verify its complaint. More specifically, he argued that because the verification was attached to the complaint as a separate document rather than incorporated within it, the complaint failed to state a cause of action. Alternatively, he argued genuine issues of material fact precluded summary judgment.1 The homeowner refers to conflicting trial court decisions throughout this district and others that have either accepted or rejected complaints when the verification was not incorporated within the complaint.
We find no requirement in Florida Rule of Civil Procedure 1.110(b) that the verification be contained within the complaint. The rule provides in part:
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.”
Fla. R. Civ. P. 1.110(b).
Nothing in the rule prohibits the verification from starting on a separate page. All that the rule requires is that the document include “an oath, affirmation, or the following” identified language. We will not read more into the rule than its plain language dictates. See, e.g., Trucap Grantor Trust 2010-1 v. Pelt, 84 So.3d 369 (Fla. 2d DCA 2012) (holding trial court erred in relying on section 92.525(2), Fla. Stat. (2010), requiring verification that the facts are “true” instead of rule 1.110(b), which was recently promulgated for foreclosure actions). The contention that a separate verification document violates rule 1.110(b) places form over substance. That we will not do.
For the reasons stated, we affirm the summary judgment.
Affirmed.
MAY, C.J., DAMOORGIAN and CONNER, JJ., concur.
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Donado v. Pennymac Corp., 174 So. 3d 1041 (Fla. 4th DCA 2015)…s amended complaint with prejudice for failure to verify because the court found that appellant’s “usage of the terms ‘to the best of my knowledge and belief ” satisfied the [*1044] verification requirement); Becker v. Deutsche Bank Nat’l Trust Co., 88 So. 3d 361, 362 (Fla. 4th DCA 2012) (holding that the verification requirement in rule 1.110(b) was satisfied where “verification was attached to the complaint as a separate document rather than incorporated within it,” and stating “[w]e will not read more int…
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Deutsche Bank Nat'l Tr. Co. for Morgan Stanley ABS Cap. I Inc. Tr. 2006-HE8 v. Plageman, 133 So. 3d 1199 (Fla. 2d DCA 2014)…“there is no requirement in rule 1.110(b) that the verification be contained within the complaint, and ‘[njothing in the rule prohibits the verification from starting on a separate page.’” Id. at 236 (quoting Becker v. Deutsche Bank Nat’l Trust Co., 88 So. 3d 361, 362 (Fla. 4th DCA 2012)). The Fifth District has concluded that a trial court erred in dismissing a foreclosure complaint because the verification did not relate the signer’s position. See U.S. Bank, N.A. v. Wanio-Moore, 111 So. 3d 941, 941 (Fla.…
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BAC Home Loan Servicing, L.P. v. Stentz, 91 So. 3d 235 (Fla. 2d DCA 2012)…Id. at 373. Further, there is no requirement in rule 1.110(b) that the verification be contained within the complaint, and “[njothing in the rule prohibits the verification from starting on a separate page.” Becker v. Deutsche Bank Nat’l Trust Co., 88 So. 3d 361, 362 (Fla. 4th DCA 2012). Like the Fourth District, “[w]e will not read more into [rule 1.110(b) ] than its plain language dictates.” Id. Accordingly, we adopt the reasoning in Trucap and Becker and hold that the trial [*237] court erred by dismiss…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Fleming v. Peoples First Fin. Sav. & Loan Ass'n, 667 So. 2d 273 (Fla. 1st DCA 1995)
- Trucap Grantor Tr. 2010-1 v. Pelt, 84 So. 3d 369 (Fla. 2d DCA 2012)