On Friday June 7, 2013 Governor Scott signed HB87 into law instead of taking no action by not signing the law passed by legislation or veto the law. Foreclosure defense attorneys and advocates are already on a mission to have the new law repealed and obtain an injunction in the meantime that would stay the law from becoming effective as of July 1st, 2013.
The bill, which is now adopted as a Florida Statute, contains language that it is effective on all foreclosure Complaints filed after June 7th, 2013 will have new requirement to withstand a Motion to Dismiss. Section 702.015 of the Florida Statutes requires a Plaintiff who files a foreclosure Complaint after July 1st, 2013 and alleges it is the holder of the original Note to certify under penalty of perjury that it is (1) in possession of the Note, (2) the location of the Note, (3) the name and title of the person giving the certification, (4) name of the person who verified that the Plaintiff is in face in possession of the Note and (5) the time and date that possession of the note was verified. A verified complaint is different from a normal law suit, whereas the verified complaint is filed with an affidavit committing all allegations in the complaint as evidence or testimony on the record.
If the Plaintiff Bank is claiming it is “entitled to enforce the Note” rather than the “holder” of the Note, it must allege with specificity that it has been delegated such authority, (2) describe the authority of the Plaintiff and specifically describe the document that grants Plaintiff such authority to act on behalf of the person who is entitled to enforce the Note.
However, if the Plaintiff is trying to re-establish the Note because it has been lost, stolen or destroyed, section 702.015 establishes even more requirements that the Plaintiff must adhere to procedurally and substantively. An affidavit executed under the penalty of perjury must be attached to the Complaint and must (1) detail a clear chain of all endorsements, transfers, or assignments, (2) set forth facts that the Plaintiff is entitled to enforce the lost, destroyed or stolen Note and (3) attach as exhibits documents which prove Plaintiff’s ownership, possession, acquisition of the Note.
What if the Plaintiff doesn’t comply with the above requirements? Not only would the Defendant/Homeowner be able to prevail on a properly filed Motion to Dismiss but subsection (6) allows a court to sanction a Plaintiff who does not comply with section 702.015 requirements. Foreclosure mills representing banks are notoriously sloppy with their preparation of Complaints filed on behalf of the bank, which are currently filed, and it might take some time before they are able to fully comply with this new section effectively.
This is the “silver lining” to the new bill recently adopted into law by the governor. Homeowners now have more absolute defenses to argue that the Complaint should be dismissed entirely against them, and even potentially followed by sanctioning the bank for their failure to properly adhere to procedure.
Although this bill was created to fast track foreclosures, it is requiring the Banks prove more during the initial pleading stages. Although every new law has its “silver lining”, it is important to also point out that this new law affords the bank a means to have the Court enter a judgment against the homeowner, should the Court find a basis to have the home owner show cause that he or she has a valid defense to the foreclosure. It is important, now more than ever, that you retain counsel once you have been served with the foreclosure law suit rather than waiting until the Court has already ordered a judgment and sale. At this point, too late will finally mean, too late. Your best option is to seek counsel to assist you in keeping the bank and its foreclosure proceedings at bay before a law suit is filed if you have fell behind in your payments.
If you are behind on your payments and facing foreclosure, make sure you hire an attorney who can effectively defend your rights. Here at K/S Law we are continuously up-to-date in this ever changing area of law. K/S can assist you with your defense, as well as your loan modification, short sale, and even defend a deficiency judgment, all at affordable rates. Call us today for your “no obligation” free consultation, and let us discuss how we can help you. Whether you are currently in foreclosure or pre-foreclosure, you are not without defenses or options so call us today and let us help you get back on track.