Lorraine Campbell and Charles Lamm v. Wells Fargo Bank, N.A. , 204 So. 3d 476 ( 2016 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LORRAINE CAMPBELL and CHARLES LAMM,
Petitioners,
v.
WELLS FARGO BANK, N.A.,
Respondent.
No. 4D16-1728
[July 6, 2016]
Petition for writ of mandamus to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Joel T. Lazarus, Judge; L.T. Case No.
10-47953 CACE 11.
Peter J. Snyder of Peter J. Snyder, P.A., Boca Raton, for petitioners.
John D. Cusick of Phelan Hallinan Diamond & Jones, PLLC, Fort
Lauderdale, for respondent.
PER CURIAM.
Petitioners Lorraine Campbell and Charles Lamm, the defendants in a
pending residential mortgage foreclosure action, 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). We deny the petition and conclude that
a plaintiff’s failure to meet the certification requirements is not a
mandatory prerequisite to the filing of suit which can be enforced by
mandamus.
The statute and rule at issue provide as follows:
(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
of the complaint for foreclosure, that the plaintiff 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. 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. Stat. (2015).
(c) Possession of Original Promissory Note. If the claimant
is in possession of the original promissory note, the claimant
must file under penalty of perjury a certification
contemporaneously with the filing of the claim for relief for
foreclosure that the claimant 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. 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. 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. . . .”). The Florida Supreme Court’s
adoption of rule 1.115 followed. See In re Amendments to Florida Rules of
Civil Procedure, 153 So. 3d 258, 259 (Fla. December 11, 2014) (creating
rule 1.115, “effective as to cases filed on or after July 1, 2013,” that is,
immediately upon the release of the court’s opinion).
In closed case number 4D15-2601, petitioners previously sought a writ
of certiorari to quash, on the same grounds, the denial of their prior motion
to dismiss the Verified First Amended Complaint. By unpublished order,
this Court dismissed that petition for failure to establish material harm
that could not be adequately remedied on appeal. See, e.g., Donado v.
PennyMac Corp., 174 So. 3d 1041, 1042 (Fla. 4th DCA 2015) (reversing a
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final foreclosure judgment where the trial court erred in denying a motion
to dismiss the initial complaint which did not comply with the verification
requirement of Florida Rule of Civil Procedure 1.110(b), a predecessor to
rule 1.115).
In 2015, respondent filed the Verified Second Amended Complaint, and
petitioners again moved to dismiss, alleging respondent had failed to
certify its possession of the original promissory note and provide the
information required by the statute and rule. The trial court denied the
motion to dismiss, and petitioners have returned to this Court, now
seeking a writ of mandamus.
Petitioners contend that mandamus “may be issued to enforce
compliance with a mandatory rule.” Genuine Parts Co. v. Parsons, 917 So.
2d 419, 421 (Fla. 4th DCA 2006) (granting mandamus to enforce Florida
Rule of Civil Procedure 1.440(c), which prohibits the setting of a trial less
than thirty days after service of a notice for trial); see also Gawker Media,
LLC v. Bollea, 170 So. 3d 125, 129-30 (Fla. 2d DCA 2015) (granting
mandamus to enforce rule 1.440 and holding that an appeal after final
judgment would be insufficient to remedy the rule’s provisions requiring a
fifty-day hiatus between trial and service of the last pleading).
“Mandamus is a narrow, extraordinary writ used to coerce an official to
perform a clear legal duty.” Sica v. Singletary, 714 So. 2d 1111, 1112 (Fla.
2d DCA 1998). It “is a discretionary writ that is awarded, not as a matter
of right, but in the exercise of a sound judicial discretion and upon
equitable principles.” Haft v. Adams, 238 So. 2d 843, 844 (Fla. 1970).
This Court in Genuine Parts, 917 So. 2d at 421, and our sister court in
Gawker Media, 170 So. 3d at 130, recognized mandamus as a proper
vehicle to enforce the time restrictions for the setting of a trial under rule
1.440. However, as explained in Bollea, “a trial court’s obligation to hew
strictly to the rule’s terms is so well established that it may be enforced by
a writ of mandamus compelling the court to strike a noncompliant notice
for trial or to remove a case from the trial docket.” 170 So. 3d at 130. In
that context, the appellate remedy was deemed insufficient to remedy the
right to not be subjected to trial in violation of the timing requirements of
rule 1.440. Id.
Petitioners argue that mandamus has been used to enforce other
mandatory procedural rules. See Novartis Pharm. Corp. v. Carnoto, 798
So. 2d 22 (Fla. 4th DCA 2001) (granting mandamus to enforce compliance
with Florida Rule of Civil Procedure 1.490, which precludes reference of a
matter to a magistrate without the consent of the parties); Hicks v.
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Chamberlin, 710 So. 2d 993 (Fla. 4th DCA 1998) (granting mandamus to
compel the trial court to hold a hearing as required by Florida Rule of Civil
Procedure 1.610(d)).
However, these decisions do not support expanding this Court’s
extraordinary writ jurisdiction to review any non-final order where a party
alleges failure to comply with a procedural rule. In Novartis, established
precedent had recognized mandamus as a means to compel a trial court
to exercise its clear ministerial duty to hear a matter that was not subject
to referral to a magistrate. 798 So. 2d at 23 (citing Hanor v. Hinckley, 584
So. 2d 1129 (Fla. 4th DCA 1991)) (additional citations omitted). Likewise,
in Hicks, the petition sought mandamus to compel the trial court to
exercise its clear ministerial duty to hold a hearing required by law. 710
So. 2d at 993. As we have explained, “[c]entral to mandamus relief is the
ministerial character of the compelled action[.]” Bd. of Cty. Comm’rs
Broward Cty. Fla. v. Parrish, 154 So. 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. Stat. (2015)
(incorporating mandatory language in “[p]resuit investigation of medical
negligence claims and defenses by court”), and § 768.72, Fla. Stat. (2015)
(“In any civil action, no claim for punitive damages shall be permitted
unless there is a reasonable showing by evidence in the record or proffered
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. Stat. (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 a
mandatory, non-discretionary duty.
We deny the petition filed in this case, as the record does not reflect
the trial court’s refusal to perform a strictly ministerial duty. We adhere
to our prior ruling that certiorari is also not appropriate.
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Petition denied.
WARNER, DAMOORGIAN and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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