Luz Mariana Donado and Oscar Donado v. Pennymac Corp

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LUZ MARIANA DONADO and OSCAR DONADO,
Appellants,
v.
PENNYMAC CORP.,
Appellee.
No. 4D14-1383
[August 19, 2015]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Cynthia G. Imperato, Judge; L.T. Case No. CACE
10017106(11).
Vestalia Aylsworth of Aylsworth & Aylsworth, Miami, for appellants.
Nancy M. Wallace of Akerman LLP, Tallahassee, William P. Heller of
Akerman LLP, Fort Lauderdale, and Celia C. Falzone of Akerman LLP,
Jacksonville, for appellee.
KLINGENSMITH, J.
Luz Mariana and Oscar Donado (“appellants”) appeal the trial court’s
final judgment of foreclosure in favor of PennyMac Corporation
(“appellee”). On appeal, we consider whether the trial court erred by failing
to dismiss the initial complaint for failure to include verification in its
pleading as required by then-Florida Rule of Civil Procedure 1.110(b) (“rule
1.110(b)”).1 We hold that appellee’s failure to verify its complaint caused
it to be defective. We therefore reverse the final judgment of foreclosure
1 The current version of rule 1.110(b) no longer contains the verification
requirement for foreclosure actions on real property. See Fla. R. Civ. P. 1.110(b).
The language was dropped from rule 1.110(b) in 2014 in light of the creation of
new Florida Rule of Civil Procedure 1.115. See id. (stating in the committee notes
that “[t]he last two paragraphs of rule 1.110(b) regarding pleading requirements
for certain mortgage foreclosure actions were deleted and incorporated in new
rule 1.115”); see also Fla. R. Civ. P. 1.115(e).
entered in favor of appellee and remand this case to the trial court for
dismissal of the action without prejudice.
Because appellants’ issue pertains to the sufficiency of the initial
complaint, the appropriate standard of review is de novo. See Rubenstein
v. Primedica Healthcare, Inc., 755 So. 2d 746, 748 (Fla. 4th DCA 2000)
(“Because the issue of whether a complaint is sufficient to state [a] cause
of action is one of law, the standard of review is de novo.”). Additionally,
“[t]he standard of review of a trial court’s interpretation of the rules of civil
procedure is de novo.” R.T.G. Furniture Corp. v. Coates, 93 So. 3d 1151,
1153 (Fla. 4th DCA 2012).
On April 19, 2010, appellee filed a complaint against appellants alleging
one count of foreclosure, and attached both the note and the mortgage.
The complaint did not contain any verification language as required by the
Florida Supreme Court when it amended rule 1.110(b) to “require
verification of mortgage foreclosure complaints involving residential real
property.” In re Amendments to the Fla. R. Civ. P., 44 So. 3d 555, 556 (Fla.
2010). The court added the following language to that rule:
When filing an action for foreclosure of a mortgage on
residential real property the complaint shall be verified. When
verification of a document is required, the document filed shall
include an oath, affirmation, or the following statement:
“Under penalty of perjury, I declare that I have read the
foregoing, and the facts alleged therein are true and correct to
the best of my knowledge and belief.”
Id. at 560.
The court also stated that the amendment was to “become effective
immediately upon the release of this opinion,” on February 11, 2010. Id.
at 559.
After this opinion initially was released, the court issued a revised
opinion on June 3, 2010. See JP Morgan Chase Bank v. Jurney, 86 So. 3d
1182, 1183-84 (Fla. 2d DCA 2012) (explaining the events following the
initial February 11, 2010 publication of In re Amendments to the Florida
Rules of Civil Procedure). This modified opinion also was dated February
11, 2010, and stated that the amendments were to be “effective
immediately upon the release of this opinion.” Id. at 1184. Moreover, the
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revised opinion did not change any of the original opinion’s amendments
to rule 1.110(b). Id.
In light of the issuance of the modified opinion, appellee maintains that
the effective date of the amendment to rule 1.110(b) was the date of its
release, specifically June 3, 2010. Because the modified opinion was
issued over two months after appellee filed its initial complaint, appellee
claims that it was not required to include a verification. That position is
incorrect.
Because the court’s modified opinion clearly lists February 11, 2010,
as the effective date of the amendment to rule 1.110(b), this is the point in
time after which all foreclosure complaints were required to contain a
verification. See id. (stating that “[i]t is the understanding of this court
that, in this context, the supreme court intends rules to become effective
on the issuance of the original opinion and to remain effective during any
period in which a motion for rehearing can be filed or is pending”); see also
Phillip Padovano, Florida Appellate Practice § 18.7, at 356-57 (2007-2008
ed.) (noting that finality and the effective date of an appellate decision are
“distinct concept[s],” and stating that “[t]he effective date of an appellate
decision is the date appearing on the face of the decision, even though
most decisions do not actually become final until after the time has expired
for filing a motion for rehearing . . . the date appearing on the decision is
the effective date”). As such, appellee was required to file a foreclosure
complaint containing either an oath, affirmation or verification language
sufficient to comply with the rule.
It is clear from the record that the complaint at issue did not contain
any of the verification elements necessary for compliance with the
amendment to rule 1.110(b) in place at that time, nor were there any other
terms or attachments that reasonably could have satisfied the verification
requirement. See, e.g., BAC Home Loan Servicing, L.P. v. Stentz, 91 So. 3d
235, 236 (Fla. 2d DCA 2012) (reversing trial court’s decision to dismiss
appellant’s amended complaint with prejudice for failure to verify because
the court found that appellant’s “usage of the terms ‘to the best of my
knowledge and belief’” satisfied the verification requirement); Becker v.
Deutsche Bank Nat’l Trust Co., 88 So. 3d 361, 362 (Fla. 4th DCA 2012)
(holding that the verification requirement in rule 1.110(b) was satisfied
where “verification was attached to the complaint as a separate document
rather than incorporated within it,” and stating “[w]e will not read more
into the rule than its plan language dictates”).
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Appellee’s failure to include the necessary verification in its complaint
constitutes a defect of such significance that the trial court should have
dismissed this action without prejudice.
Reversed and Remanded.
WARNER and MAY, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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