CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 10377
...n, petition for a writ of
mandamus, seeking review of the denial of their motion to dismiss.
Petitioners contend that the Verified Second Amended Complaint of
respondent, Wells Fargo Bank, N.A., does not comply with the certification
requirements of section 702.015(4), Florida Statutes (2015), and Florida
Rule of Civil Procedure 1.115(c)....
...Correct copies of
the note and all allonges to the note must be attached to the
certification. The original note and the allonges must be filed
with the court before the entry of any judgment of foreclosure
or judgment on the note.
§ 702.015(4), Fla....
...The
original note and the allonges must be filed with the court
before the entry of any judgment of foreclosure or judgment
on the note.
Fla. R. Civ. P. 1.115(c).
The Verified Amended Complaint in this case was filed in November
2014, after the 2013 legislation enacting section 702.015(4), Florida
Statutes. Ch. 2013-137, § 8, Laws of Fla. (“In addition, the Legislature
finds that s. 702.015, Florida Statutes, as created by this act, applies to
cases filed on or after July 1, 2013....
...3d 412, 417 (Fla. 4th DCA 2014). “A
duty or act is defined as ministerial when there is no room for the exercise
of discretion, and the performance being required is directed by law.”
Town of Manalapan v. Rechler,
674 So. 2d 789, 790 (Fla. 4th DCA 1996).
Section
702.015(4) and rule 1.115(c) do not create a mandatory pre-
suit requirement such that a trial court has only a ministerial duty to
dismiss the complaint if a certification is not included. Compare
§
702.015(4), and rule 1.115(c), with §
766.206, Fla....
...ffered
by the claimant which would provide a reasonable basis for recovery of
such damages.”). The certification requirement of the statute was not
intended to be a prerequisite to suit but was instead intended to expedite
the foreclosure process. § 702.015(1), Fla....
...(2015) (“The Legislature
intends that this section expedite the foreclosure process by ensuring
initial disclosure of a plaintiff’s status and the facts supporting that status,
thereby ensuring the availability of documents necessary to the
prosecution of the case.”). In fact, section 702.015(6) states that the court
may sanction a plaintiff for failure to comply, which contradicts any
argument that these are mandatory conditions precedent to suit or that
the complaint must be dismissed for failure to comply, thus creating...
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...or necessarily part of a foreclosure case. In this regard, trial courts presiding over
foreclosure cases are well served to keep in mind the following “oft-overlooked
point”:
2 Although adopted after the filing of the complaint in this case, section 702.015,
Florida Statutes (2017), Florida Rule of Civil Procedure 1.115 and Forms 1.944(a)
and (b), have established pleading requirements and certifications related to a
plaintiff’s status as a person entitled to enforce....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2017 WL 651112, 2017 Fla. App. LEXIS 2235
...3d 1041, 1042 (Fla. 4th DCA 2015)
("Because appellants' issue pertains to the sufficiency of the initial complaint, the
appropriate standard of review is de novo."). The bank was required to attach a
verification to its complaint pursuant to rule 1.110(b) and section 702.015, Florida
Statutes (2013)....
...rant
this oral motion on the morning of trial when the bank had not been properly noticed.
We also note that Lucombe's use of the verification requirement to delay a
trial on the merits overlooks the legislature's intent in enacting section
702.015. "The
certification requirement of the statute was not intended to be a prerequisite to suit but
was instead intended to expedite the foreclosure process." Campbell,
204 So. 3d at
479-80 (citing §
702.015(1) ("The Legislature intends that this section expedite the
foreclosure process by ensuring initial disclosure of a plaintiff's status and the facts
supporting that status, thereby ensuring the availability of documents necessary to the
prosecution of the case."))....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...We find that
Wells Fargo presented sufficient evidence of its standing to sue, and reverse the
trial court’s involuntary dismissal.
Standing to foreclose must be demonstrated with competent, substantial
evidence at the time of filing the lawsuit. See § 702.015, Fla....
CopyPublished | Florida 5th District Court of Appeal
...under this loan on December 1, 2012, and all subsequent payments. U.S. Bank attached a copy of the note, containing the same and sole indorsement, and a copy of the mortgage to its complaint. Additionally, U.S. Bank filed a certification pursuant to section 702.015(4), Florida Statutes (2017), that the original note was located "at the *1147 Orange County Courthouse [in the 2009 court file], on behalf of [U.S....
CopyPublished | Florida 1st District Court of Appeal | 2016 WL 6684200, 2016 Fla. App. LEXIS 16911
PER CURIAM. This is an appeal from a final order dismissing appellant’s mortgage foreclosure action without prejudice on the ground that the certification filed with the complaint failed to comply with section 702.015(4), Florida Statutes (2013)....
...inal appealable order.”). Appellant correctly argues that dismissal was improper because the certification executed by appellant’s counsel complied with the statute. Accordingly, we reverse and remand for reinstatement of the foreclosure action. Section 702.015, Florida Statutes, provides in pertinent part: (4) If the plaintiff is in possession of the original promissory note, the plaintiff must file under penalty of perjury a certification with the court, contemporaneously with the filing o...
...The original note and the allonges must be filed with the court before the entry of any judgment of foreclosure or judgment on the note. The certification that appellant was in possession of the original promissory note was not rendered defective because it was filed by appellant’s attorney. * While section 702.015(4) requires the plaintiff to file a certification that the plaintiff is in possession of the original promissory note, it does not preclude the plaintiffs attorney from being the “individual giving the certification” or “the per...
...as in possession of the original note based on counsel’s review of the collateral file, which contained the original note and was provided to counsel in connection with legal proceedings to enforce the note. Because the certification complied with section 702.015(4), we reverse the order of dismissal and remand for reinstatement of the foreclosure action....
CopyPublished | Florida 4th District Court of Appeal | 92 U.C.C. Rep. Serv. 2d (West) 159, 2017 WL 1013189, 2017 Fla. App. LEXIS 3453
...The defendants later defaulted on the note and mortgage. Before the bank filed the foreclosure action, the lender assigned the note and mortgage to the bank. Attached to the verified complaint was the bank’s “Certification Regarding Possession of Original Promissory Note” pursuant to section 702.015(4), Florida Statutes (2013)....
...And this has nothing to do with an allonge, Your Honor. This has to do with what appears to be a Fraud on the Court because this endorsement would have been [included on the copy of the note]... attached to the Complaint. [[Image here]] Florida Statute requires, 702.015, that the bank must certify ......
...on or of any claim against that party for failure of an adverse party to comply with these rules or any order of court.”). According to the defendants, their motion for involuntary dismissal was based on the bank’s alleged failure to comply'with section 702.015(4), Florida Statutes (2015), and its implementing rule, Florida Rule of Civil Procedure 1.115(c) (2015). The defendants’ argument is belied by the record. The record, as shown above in this opinion, indicates that although the defendants mentioned section 702.015 in their arguments to the trial court, they did so merely to describe the reason for the existence of the certification, as a prelude *736 to what ultimately became their authenticity objection to the original note’s admissibility....
CopyPublished | Florida 3rd District Court of Appeal | 2016 Fla. App. LEXIS 10354
...fees following remand.
Final summary judgment reversed and remanded; order awarding attorney’s
fees vacated.
4 The Legislature has codified the requirements for establishing possession of the
promissory note in residential foreclosure cases. See § 702.015, Fla. Stat. (2013).
The statute applies to cases filed on or after July 1, 2013. In 2014, the Florida
Supreme Court adopted rule 1.115 of the Florida Rules of Civil Procedure to give
effect to section 702.015.
6
CopyPublished | District Court of Appeal of Florida
PHH Mortg. 3We note that section
702.015, Florida Statutes, and Florida Rule of Civil
CopyPublished | Florida 3rd District Court of Appeal
...3d 126 (Fla. 3d DCA 2023), and the question
of standing de novo. See Katha, LLC v. SHEDDF3-AE, LLC,
394 So. 3d
707, 709 (Fla. 3d DCA 2024).
2
Campbell v. Wells Fargo, N.A.,
204 So. 3d 476, 479-80 (Fla. 4th DCA 2016));
§
702.015(1), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2017 WL 377997, 2017 Fla. App. LEXIS 859
...2d DCA 1994)
(recognizing that in a foreclosure action the original promissory note must be introduced
-4-
into evidence at trial "or a satisfactory reason must be given for failure to do so").
Further, section 702.015(4), Florida Statutes (2014), requires that the original note be
filed with the court before entry of a foreclosure judgment or a judgment on the note.
Because a promissory note is a negotiable instrument, it is necess...
CopyPublished | Supreme Court of Florida | 41 Fla. L. Weekly Supp. 1, 2016 Fla. LEXIS 68, 2016 WL 164134
...96(a), and 1.996(b). The
Committee also proposed new rule 1.115 and several new forms. The amended
and new rules and forms were proposed in response to legislation regarding
mortgage foreclosure actions. Chapter 2013-137, Laws of Florida, created section
702.015, Florida Statutes....
...requirements for mortgage foreclosure complaints intended to “expedite the
foreclosure process by ensuring initial disclosure of a plaintiff’s status and the facts
supporting that status, thereby ensuring the availability of documents necessary to
the prosecution of the case.” § 702.015(1), Fla....
...amendments described below.
AMENDMENTS
Rule 1.115 (Pleading Mortgage Foreclosures). Rule 1.115 specifically
governs pleading requirements in foreclosure actions. The rule incorporates the
requirements of section 702.015, Florida Statutes, detailing pleading requirements
where the plaintiff is the holder of the original note secured by the mortgage,
where the plaintiff has been delegated authority to institute an action on behalf of
another who is entitled to enforce the note, and where the plaintiff seeks to enforce
a lost, destroyed, or stolen note. § 702.015, Fla....
...The
form addresses the issues of delegated authority to institute a mortgage foreclosure
action and certification of possession of the original note. As with new rule 1.115,
the amendments that were made to this form closely follow the requirements for
pleading set forth in section 702.015, Florida Statutes (2015)....
...Form 1.944(b) (Mortgage Foreclosure). This mortgage foreclosure
complaint form is for use in mortgage foreclosure cases where the location of the
original note is unknown. It incorporates the pleading requirements for such cases
set forth in section 702.015(5), Florida Statutes (2015)....
...It omits allegations about junior
encumbrances, unpaid taxes, unpaid insurance premiums, other nonmonetary defaults, and for a
receiver. They must be added when appropriate. A copy of the note and mortgage must be
attached. This form may require modification. This form is designed to incorporate the pleading
requirements of section 702.015, Florida Statutes (2013) and rule 1.115....
...It is also designed to
conform to section
673.3011, Florida Statutes (2013), except that part of section
673.3011,
Florida Statutes, which defines a person entitled to enforce an instrument under section
673.3091, Florida Statutes. See form 1.944(b). Pursuant to section
702.015, Florida Statutes
(2013), a certification of possession of the original promissory note must be filed
contemporaneously with the Complaint (form 1.944(a)) or, in the event that the plaintiff seeks to
enforce a lost, destroyed, or stol...
...It omits
allegations about junior encumbrances, unpaid taxes, unpaid insurance premiums, other
nonmonetary defaults, and for a receiver. Allegations must be added when appropriate. This
form may require modification. This form is designed to incorporate the pleading requirements
of section 702.015, Florida Statutes (2013), and rule 1.115....
CopyPublished | Florida 3rd District Court of Appeal
...for rehearing prior to the
scheduled foreclosure sale date.
Instead, we would urge trial courts in these circumstances to ensure that any
pending motion for rehearing has been resolved prior to the scheduled foreclosure
2017) (holding that section 702.015, Florida Statutes does not impose an additional
element in a mortgage foreclosure cause of action); Campbell v....
CopyPublished | Florida 2nd District Court of Appeal
...The trial court subsequently entered an
order dismissing RBS's complaint, without leave to amend, solely on the basis that
RBS's certification of possession of the original promissory note was not notarized. We
reverse because the operative statute imposes no such notarization requirement.
Section 702.015(4), Florida Statutes (2015), requires a foreclosure plaintiff
in possession of the original promissory note to file under penalty of perjury a
certification that it is in possession of the original promissory note:...
...The
certification must set forth the location of the note, the name
and title of the individual giving the certification, the name of
the person who personally verified such possession, and the
time and date on which the possession was verified.
(Emphasis added.) Section 702.015(6) gives a trial court discretionary authority to
sanction the plaintiff for failure to comply with this requirement.
Here, contemporaneously with the filing of its foreclosure complaint on
April 16, 2015, RBS filed...
...Directly above the signature appeared
the statement: "Under penalties of perjury, I declare that I have read the foregoing and
that the facts stated in it are true."
The trial court dismissed RBS's complaint "solely because the [section]
702.015(4) Certification of Possession attached to Plaintiff's Complaint is not notarized,
-2-
which could allow for false statements to be made." Section 702.015(4), however,
merely requires a certification of possession of an original promissory note to be filed
"under penalty of perjury" and does not require the certification to be notarized....
...ve read
the foregoing [document] and that the facts stated in it are true" (alteration in original));
In re Amendments to Fla. Rules of Civil Procedure,
153 So. 3d 258, 262 (Fla. 2014)
(adding Florida Rule of Civil Procedure 1.115(c) to implement section
702.015(4), and
amending form 1.944(a) to add a new section entitled "Certification of Possession of
Original Note," which contains the following written declaration: "Under penalties of
perjury, I declare that I have read the foregoing Certification of Possession of Original
Note and that the facts stated in it are true"). Because section
702.015(4) does not
require notarization, the trial court erred by dismissing RBS's verified foreclosure
complaint....
CopyPublished | Florida 3rd District Court of Appeal | 2015 Fla. App. LEXIS 18768, 2015 WL 8932416
...reviewed it a day before or a week before or a month before or a year
before.
3
THE COURT: I don’t think that’s the thrust of the objection.
Counsel, are you familiar with Florida Statute 702.015 as amended by
the 2013 Legislature?
There followed a discussion about the statutory amendment and Yang v....
...Proof by affidavit attached to the complaint, as required
under the 2013 amendment to section
673.3091, subsection (5), is inapplicable to
this action which was filed in 2009. Fla. Laws c. 2013-137, § 8 (“[T]he
Legislature finds that s.
702.015, Florida Statutes, as created by this act, applies to
cases filed on or after July 1, 2013….”)....
CopyPublished | Florida 3rd District Court of Appeal
...We reverse and remand.
Facts and Procedural History
In September 2013, as BNYM prepared to commence the foreclosure action
in circuit court, an assistant vice president for Bank of America, N.A. (“BANA”),
signed the possession certificate required by section 702.015(4), Florida Statutes
(2013), and Florida Rule of Civil Procedure Form 1.944(a)....
CopyPublished | Supreme Court of Florida | 39 Fla. L. Weekly Supp. 752, 2014 Fla. LEXIS 3682, 2014 WL 6977929
...The Committee also proposes new rule 1.115
and several new forms. According to the report, the amended and new rules and forms
are in response to legislation regarding mortgage foreclosure actions. Chapter 2013-173,
Laws of Florida, created new section 702.015, Florida Statutes....
...other nonmonetary defaults, and for a receiver. They must be added when proper
appropriate. CopiesA copy of the note and mortgage must be attached. This form
may require modification. This form is designed to incorporate the pleading
requirements of section 702.015, Florida Statutes (2013) and rule 1.115....
...It is also
designed to conform to section
673.3011, Florida Statutes (2013), except that part
of section
673.3011, Florida Statutes, which defines a person entitled to enforce an
instrument under section
673.3091, Florida Statutes. See form 1.944(b). Pursuant
to section
702.015, Florida Statutes (2013), a certification of possession of the
original promissory note must be filed contemporaneously with the Complaint
(form 1.944(a)) or, in the event that the plaintiff seeks to enforce a lost, destroyed,
or stol...
...It
omits allegations about junior encumbrances, unpaid taxes, unpaid insurance
premiums, other nonmonetary defaults, and for a receiver. Allegations must be
added when appropriate. This form may require modification. This form is
designed to incorporate the pleading requirements of section 702.015, Florida
Statutes (2013), and rule 1.115....
CopyPublished | District Court, M.D. Florida | 2014 WL 3867618, 2014 U.S. Dist. LEXIS 110912
...The Court found Plaintiffs motion premature, as Plaintiff had neither filed the original or subsequent promissory notes at issue in this case nor provided a certification that it possessed the original promissory note. (Doc. # 78 at 13). In reaching its conclusion, the Court cited to Florida Statute § 702.015 (2013). Plaintiff has since challenged the Court’s reliance on § 702.015. (Doc. # 93). Section 702.015 “applies to cases filed on or after July 1, 2013.” Fla. Stat. § 702.015 . Note A. Plaintiff commenced this action on January 8, 2013, (Doc. # 1), but filed the Amended Verified Complaint, (Doc. # 37), the operative pleading in this case, on July 2, 2013. Nevertheless, the Court agrees with Plaintiff that § 702.015 does not apply because this case was commenced before § 702.015 became effective. Also, to the extent the Court specifically cited to § 702.015(2) in its Order, (Doc. #78). Plaintiff correctly points out that *1305 § 702.015(2) applies to residential mortgage loans, not commercial mortgage loans as is the case here. Furthermore, the Court cited to § 702.015(4), which pertains to promissory-notes. Section 702.015(4) reads [i]f the plaintiff is in possession of the original promissory note, the plaintiff must file under penalty of perjury a certification with the court, contemporaneously with the filing of the complaint for foreclosure, that the plaintiff is in possession of the original promissory note....
...ified. Correct copies of the note and all allonges to the note must be attached to the certification. The original note and the allonges must be filed with the court before the entry of any judgment of foreclosure or judgment on the note. Fla. Stat. § 702.015 (4). Unlike § 702.015(2), which applies to residential mortgages, the Florida Legislature did not delineate that § 702.015(4) applies only to promissory notes for residential properties. Additionally, regardless of the effective date of § 702.015, the requirement that an original promissory note be filed before the court can enter judgment on the note has long been the law in Florida....
