IN THE CIRCUIT COURT OF THE 18TH.
JUDICIAL CIRCUIT IN AND FOR
BREVARD COUNTY, FLORIDA
CASENO.: 05-2010-CA.33741
PNC BANK, NATIONAL
ASSOCIATION,
Plaintiff,
v.
KATHLEEN PECKHAM,
LAWRENCE PECKHAM, ET AL.,
Defendants.
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
THIS CAUSE came to be heard on January 6, 2011 upon the Defendants’ Motion to
Dismiss. The Court having reviewed the Defendants’ written motion, the Court file and
applicable case law, and having heard oral argument, does hereby ORDER AND ADJUDGE:
I. PROCEDURAL HISTORY.
1, After the Plaintiff filed a Complaint to foreclosure on residential real property in Brevard
County Flerida, the Defendants, through counsel served a Motion to Dismiss.
Defendants’ Motion To Dismiss alleged that the Plaintiff's Affirmation filed with the
Complaint did not comply with Rule 1.110(b). Defendants’ motion also sought dismissal
for failure to state a cause of action because the Note, Mortgage and Assignment of
Mortgage did not reference the subject Plaintiff.
2. The Plaintiff, when it filed its Complaint, filed a separate document titled, “Fla. R. Civ. P.
1.110(b) Affirmation” that was signed by Becky Anderson, a foreclosure specialist atHome Loan Services Inc. (hereafter HLSI ). HLSI, was the loan servicer at the time the
action was filed but is not the current loan servicer or a party to the subject action.
RULING
The Court finds that the Plaintiff has plead a proper cause of action. The argument raised
in Defendants’ Motion to. Dismiss concerning inconsistency between Note and the
pleadings can be raised in an Answer and litigated by motion for summary judgment.
Florida Rule of Civil Procedure 1.110(b) sets forth the requirements for verification of
foreclosure complaints and in pertinent part states: “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” ”
Under the plain language of the rule, “the document filed shall include and oath or
affirmation” means that the oath or affirmation will be included in the document itself
and not in a separate document.
Henry Trawick makes clear that “verification’ means that the verifying party attests that,
the facts alleged in the complaint are true. Trawicks Florida Practice and Procedure Sec.
6:14 (Verification). Beverette v. Graham, 131 So. 826, 827 (Fla. 1931); Burns v, Burns,
174 $0.24 432, 434 (Fla. 2d DCA 1965), Rule 1.110(b) does not specifically provide foror allow verification to made by a non-party such as a loan servicer or agent of the
Plaintiff.
7. The reasons provided by the Florida Supreme Court for instituting the amendment to
| Rule of Procedure 1.110(b) were as follows:
The primary purposes of this amendment are (1) to provide incentive for
the plaintiff to appropriately investigate and verify its ownership of the
note or right to enforce the note and ensure that the allegations in the
complaint are accurate; (2) to conserve judicial resources that are
currently being wasted on inappropriately pleaded “lost note” counts and
inconsistent allegations; (3) to prevent the wasting of judicial resources
and harm to defendants resulting from suits brought by plaintiffs not
entitled to enforce the note; and (4) to give trial courts greater authority
to sanction plaintiffs who make false allegations.
ii, See Fla. Sup. Ct. Order SCO9-1460 and SC09-1579, p. 3-4 (Emphasis
added).
8. The Court construes the plain language of the rule and reasoning for the rule set forth the
Florida Supreme Courts Orders SC09-1460 and SCO09-1579, p. 3-4 to require that the
affirmation be executed by the Plaintiff itself,
9. The Court finds that Plaintiff's “affirmation” does not comply with Rule 1.110(b)..
10. Defendants’ Motion to Dismiss for inadequate verification is granted.
11. The Complaint is hereby dismissed without prejudice. Plaintiff is granted leave to file an
amended Complaint, under the current case number within twenty (20) days of the date
of this Order. The amended Complaint SHALL be verified by an officer of the Plaintiffand such verification must be part of the Complaint and not filed as a separate document
or exhibit.
DONE AND ORDERED at the Brevard Courthouse, located in the Viera, Florida, on
this day of 52011. ORIGINAL SIGNED ON
JAN 14 2011
Charles M. Holcomb, Circuit fudge: cian a, HOLCOMB
RUT UGE
Copies to: Claire Brueck Esq. (Attomey for Plaintiff’)
Richard Shuster, Esq. (Attorney for Defendants)