On February 11, 2010, the Florida Supreme Court made significant changes to the Florida Rules of Civil Procedure as they pertain to initiating new residential foreclosure actions in Florida’s Courts.  The Court’s opinion follows a series of changes that are being made on the local court level to stave off the glut of residential foreclosure filings that are clogging the court system.

In its recent opinion, the following rule changes are made applicable to new residential foreclosure filings:

  • Fla. R. Civ. P. 1.110(b) is amended to require verification of mortgage foreclosure complaints involving residential real property. This means that the lender must swear to, or “verify”, the veracity of the factual allegations being made in the complaint.   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.
  • Form 1.924 – Affidavit of Diligent Search, is modified as follows.  First, the form is standardized and thus more user-friendly.  There is a new section for the affiant to insert the “Attempts to Serve Process and Results”.  There is also a “catch-all” section for the affiant to list all additional efforts made to locate defendant.   Furthermore, there is now a section which reads: “I inquired of the occupant of the premises whether the occupant knows the location of the borrower-defendant, with the following results: ________.”   A major change is also that the Affidavit of Diligent Search is now signed by the person who actually performed the search – likely a process server – and not the attorney on the case who may not have personal knowledge of the process server’s efforts.
  • The opinion now requires the use of a new form, 1.996(b) – Motion to Cancel and Reschedule Foreclosure Sale.  A party cancelling a foreclosure sale is required to provide a reason for the cancellation.  Said the Court:     Currently, many foreclosure sales set by the final judgment and handled by the clerks of court are the subject of vague last-minute motions to reset sales without giving any specific information as to why the sale is being reset. It is important to know why sales are being reset so as to determine when they can properly be reset, or whether the sales process is being abused. . . . Again, this is designed at promoting effective case management and keeping properties out of extended limbo between final judgment and sale.
  • The opinion adopted a new form of Final Judgment of Foreclosure.  This new form has many changes to include clarity, bring the form in line with current statutory provisions and requirements, increase readability, and to conform to prevailing practices in the courts.

These amendments went into effect upon release of the Court’s opinion on February 11, 2010.