Change to Florida Rules of Civil Procedure Governing Mortgage Foreclosures

The Florida Supreme Court adopted an amendment to the Florida Rules of Civil Procedure which is effective immediately.  The amendment creates a new rule, namely Fla. R. Civ. Pro. 1.115 – Pleading Mortgage Foreclosures.  In addition to the previous requirement that a Complaint for mortgage foreclosure on residential property be verified, the new rule also requires

• A heightened pleading requirement of specificity (similar to the Civil Procedure rule governing pleading fraud) concerning the factual basis by which the lender is entitled to enforce the instrument (standing);

• If the Plaintiff has been delegated authority to institute the action on behalf of another person or entity entitled to enforce the note (i.e. pursuant to a servicing agreement), the Complaint shall describe the authority conferred and identify with specificity the document granting such authority;

• A detailed certification, under penalty of perjury, contemporaneously filed with the Complaint that the Plaintiff is in possession of the ‘original promissory note,’ which is defined as the “signed or executed promissory note rather than a copy of it.”  A copy of the promissory note, together with all allonges, must be attached to the certification.

• If the Plaintiff is seeking to reestablish a lost or destroyed instrument, a separate affidavit, executed under penalty of perjury, must also be attached to the Complaint, which shall set forth the specific facts regarding the Plaintiff’s ability to enforce the lost instrument.

Please be aware of these new requirements for any mortgage foreclosures filed in the State of Florida.  If you have further questions or if we can be of any assistance, please do not hesitate to contact us.