Requirements for the Filing of Foreclosure Complaints
The plaintiff in a foreclosure action against residential property must now verify the allegations in the complaint. In other words, the plaintiff must formally attest under oath, in writing and under penalty of perjury that the allegations contained in the complaint are true and correct. One effect of this new requirement is that the plaintiff must be able to prove from the moment it files the action that it is the true owner of the loan. One of the most effective defenses to foreclosure actions I have seen is that the plaintiff is not the true owner of the loan. The concern that the action is not brought by the proper plaintiff is rather common sense. A homeowner could potentially be the victim of numerous actions launched by different parties all claiming to own the loan. However, a foreclosure plaintiff must now make more thorough investigation into its ownership of the loan before filing suit, or it may face sanctions from the court.
Requirements for Service of Foreclosure Complaints
Often, when a process server cannot locate and serve a defendant to a complaint, the defendant will be deemed to be served by publication. This means that instead of a process server leaving a copy of the physical complaint with a person, home or place of business, the plaintiff will place a public notice in a newspaper advising of the foreclosure action. After the notice has run for a certain period of time, the court will consider a defendant to be served by publication, even though they may never have received a copy of the complaint.
The supreme court order states that before a defendant can be served by publication, the process server must complete an extensive "Affidavit of Diligent Search and Inquiry," which he must verify under oath. Among other things, the process server must list all efforts made to locate the defendant, and that if an occupant of the property is served the process server must ask them if they know the whereabouts of the borrower-defendant.
Requirements for Cancellations of Sales
Frequently requests to cancel the sale of a property have been presented to the court without any reason for the party's request. The supreme court has ruled that motions to cancel foreclosure sales must now be supported by an explanation, so that the court can determine when the sale can be properly reset, or whether the sales process is being abused.
Parties defending against foreclosure should use these new laws to their advantage. When the rulings were first annouced, some banks indicated refusal to comply with the complaint verification and that they would create their own guidelines. The initial complaint should be carefully reviewed to determine whether the plaintiff has properly verified the complaint and if not, the defendant(s) may have grounds for a motion to dismiss or sanctions against the plaintiff.
Likewise, the defendant(s) should require production of proof that the complaint was properly served. If any service was made by publication, the process server will have needed to complete the new Affidavit of Diligent Search and Inquiry.
It is necessary to constantly review whether foreclosure plaintiffs and banks are complying with Florida's constantly changing laws.