IN THE DISTRICT COURT OF APPEAL SECOND DISTRICT, STATE OF FLORIDA BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME

LOANS SERVICING, L.P., Appellant, vs. BILL R. STENTZ AKA WILLIAM R. STENTZ, et al., Appellees.
_____________________________________/

DCA Case No. 2D11-4643 L.T. Case No. 51-2009-CA-7656-ES

INITIAL BRIEF OF APPELLANT, BAC HOME LOANS SERVICING, LP Appeal From a Final Order From The Sixth Judicial Circuit NANCY M. WALLACE (65897) KATHERINE E. GIDDINGS (949396) Akerman Senterfitt 106 East College Avenue, Suite 1200 Tallahassee, Florida 32301 Telephone: 850-425-1626 Telecopier: 850-325-2526 katherine.giddings@akerman.com nancy.wallace@akerman.com WILLIAM P. HELLER (987263) Akerman Senterfitt Las Olas Centre II, Suite 1600 350 East Las Olas Blvd Fort Lauderdale, Florida 33301 Telephone: 954-759-8945 Telecopier: 954-463-2224 william.heller@akerman.com HALLIE S. EVANS (309028) GERMAINE M. SEIDER (85968) Akerman Senterfitt 401 E. Jackson Street, Suite 1700 Tampa, Florida 33602 Telephone: 813-223-7333 Telecopier: 813-223-2837 hallie.evans@akerman.com Attorneys for BAC Home Loans Servicing, LP
{22696288;1}

TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii STATEMENT OF THE CASE AND FACTS .......................................................... 1 SUMMARY OF THE ARGUMENT ........................................................................ 6 ARGUMENT ............................................................................................................. 6 Standard of Review .......................................................................................... 6 Argument .......................................................................................................... 6 I. BAC COMPLIED WITH RULE 1.110(B) BY VERIFYING THE FORECLOSURE COMPLAINT ON "KNOWLEDGE AND BELIEF" .................................................7 FLORIDA LAW PERMITS FORECLOSURE COMPLAINT VERIFICATION ON INFORMATION AND BELIEF......................................................................................... 8

II.

CONCLUSION ........................................................................................................ 11 CERTIFICATE OF SERVICE ................................................................................ 12 CERTIFICATE OF FONT SIZE ............................................................................. 12

{22696288;1}

TABLE OF AUTHORITIES Cases Page

Ballinger v. Bay Gulf Credit Union, 51 So. 3d 528 (Fla. 2d DCA 2010) ......4, 8, 10 Dep't of Highway Safety & Motor Vehicles v. Padilla, 629 So. 2d 180 (Fla. 3d DCA 1993) ................................................................................... 8, 10 Haven Fed. Savs. & Loan v. Kirian, 579 So. 2d 730 (Fla. 1991) ............................. 9 Holden v. Bober, 39 So. 3d 396 (Fla. 2d DCA 2010)................................................ 6 In re Amend. To The Fla. R. Of Civ. Proc., 44 So. 3d 555 (Fla. 2010) .................... 7 In re Commitment of Cartwright, 870 So. 2d 152 (Fla. 2d DCA) ............................. 9 Muss v. Lennar Fla. Partners I, L.P., 673 So. 2d 84 (Fla. 4th DCA 1996) ......2, 3, 9 Peak v. Outward Bound, Inc., 57 So. 3d 997 (Fla. 2d DCA 2011) ....................... 6, 7 Student Loan Mktg. Ass'n v. Morris, 662 So. 2d 990 (Fla. 2d DCA 1995) ............. 7 Florida Statutes and Rules 92.525, Fla. Stat. ............................................................................................passim 92.525(2), Fla. Stat.................................................................................................. 8 Rule 9.210(a)(2), Fla. R. App. P. ............................................................................. 12 Rule 1.030, Fla. R. Civ. P. ......................................................................................... 9 Rule 1.100(a), Fla. R. Civ. P. ..................................................................................... 8 Rule 1.110, Fla. R. Civ. P. ..................................................................................... 7, 8 Rule 1.110(b), Fla. R. Civ. P.............................................................................passim
{22696288;1}ii

Rule 1.510(e), Fla. R. Civ. P. ..................................................................................... 9

{22696288;1}

iii

STATEMENT OF CASE AND FACTS BAC Homes Loan Servicing, LP1 ("BAC") appeals the trial court's May 13, 2011 order [V2 206-07]2 dismissing BAC's verified amended complaint [V2 14277] with prejudice. The trial court ruled the complaint's verification was improper even though the verification quoted, verbatim, language permitted by Florida Rule of Civil Procedure 1.110(b), which governs verification of foreclosure complaints. BAC filed a foreclosure complaint on August 12, 2009, alleging BAC holds the note and mortgage executed by Bill R. Stentz and Jacklyn L. Stentz. [V1 125.] The complaint alleged the Stentzes defaulted and failed to make any

subsequent payments. [V1 2.] Copies of the note and mortgage were attached to the complaint. [V1 8-25.] BAC later filed the original note, indorsed in blank, with the court. [V1 55-60.] The Stentzes moved to dismiss the complaint, challenging BAC's standing to foreclose. [V1 31-35.] The motion to dismiss contended BAC's failure to allege ownership of the note and mortgage was grounds for dismissal. [Id.] BAC filed an

Effective July 1, 2011, BAC Home Loans Servicing, LP merged with and into Bank of America, N.A. under the provisions of the National Bank Act. Bank of America, N.A. is successor by merger to BAC Home Loans Servicing, LP and, as a matter of federal law, is deemed to be the same company as BAC Home Loans Servicing, LP.
2

All record references are by volume and page (e.g., [V1] is volume 1, page 1). Supplemental record references are denoted by supplemental volume and page (e.g., [SV1] is supplemental volume 1, page 1).
{22696288;1}

opposition to dismissal, asserting that the complaint allegations were legally sufficient. [V1 61-65.] The motion to dismiss hearing was held on November 8, 2010.3 [SV1 27678.] The trial court entered an order of dismissal on December 1, 2010, finding BAC's complaint did not sufficiently allege standing. [V1 115-18.] The order directed BAC to amend its complaint to plead, among other facts, it owns the note and mortgage. [V1 116-18.] Additionally, the order mandated that the amended complaint be verified according to section 92.525, Florida Statutes, and Muss v. Lennar Fla. Partners, I, L.P., 673 So. 2d 84 (Fla. 4th DCA 1996). [Id. 118.] It further stated: "any allegation in the verification containing 'best knowledge and belief' language is insufficient." [Id.] Through new counsel [V2 121, 137], BAC petitioned this Court for a writ of certiorari quashing the trial court's December 1, 2010 order of dismissal. Case No. 2D11-20. The petition asserted the order departed from the essential requirements of law by: (1) mandating BAC plead numerous allegations that are not required under Florida law; and (2) prohibiting verification based on "knowledge and belief," in direct contravention of Rule 1.110(b) of the Florida Rules of Civil Procedure. BAC's petition was dismissed on January 6, 2011, with no ruling on the meritsthus allowing BAC to raise the issue in an appeal at the end of the case. [V1 133.]
3

BAC prior counsel did not appear at the hearing. [See V1 115, n.1.]
{22696288;1}2

After BAC's petition was dismissed, BAC's counsel served a verified amended complaint on February 4, 2011. [V2 147.] Although this amended complaint differed from the original [compare V2 142-77 with V1 1-32], it similarly alleged BAC was entitled to enforce the note and mortgage as the note holder. [See V2 143-44.] The complaint was verified using the exact language set forth in rule 1.110(b): "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." [V2 148; see Fla. R. Civ. P. 1.110(b).] The Stentzes moved to strike the complaint and dismiss the foreclosure action. [V2 178-80.] The motion reasserted that the amended complaint failed to properly plead BAC's standing to foreclose. [Id. 179.] It also contended that the verification failed to comply with the December 1, 2010 order and, thus, was improper. [Id.] At a hearing on April 12, 2011 [SV1 279], the trial court denied the request to strike the complaint and dismiss the action. [V2 255-57.] The court, receding from the portion of its December order requiring BAC plead note ownership, concluded BAC's standing to foreclose was adequately pled. [V2 257.] The Stentzes' counsel argued the verification failed to comply with section 92.525 and Muss. [V2 276.] Despite BAC's assertion that the complaint was properly verified under Florida law [V2 253], the trial court found the complaint
{22696288;1}3

was insufficiently verified on "knowledge and belief" [V2 252-57] and was "not to [the trial] court's standards or what [the trial court] consider[ed] the Second DCA to require." [V2 256.] Specifically, the court found verifying a foreclosure

complaint on "knowledge and belief" was improper, because it: (1) was not permitted by section 92.525; (2) was not based on personal knowledge as required by this Court; and (3) did not serve the Florida Supreme Court's purpose of requiring verification: ensuring someone would "take a hit for lying." [Id. 252-3.] Notably, the trial court also found the verification was improper because: (1) it believed a copy of the original verification was filed instead of the original verification [V2 245]; and (2) the verification should not appear on a separate page. [V2 256.] The record shows BAC did not disagree with the court's finding on either issue. [Id.] In an order dated May 13, 2011, the court dismissed the verified amended complaint without prejudice. [V2 181-2.] The order mandated verification: (1) be made on personal knowledge and (2) otherwise be consistent with Ballinger v. Bay Gulf Credit Union, 51 So. 3d 528 (Fla. 2d DCA 2010). [V2 182; see also V2 25254.] The order also expressly stated the verification could not include "words to the effect of 'to the best of my knowledge and/or belief.'" [V2 182.]

{22696288;1}4

BAC believed its verification was legally sufficient under rule 1.110(b) and the complaint should stand as verified. [V2 192.] But, the court's order clearly prohibited using the verification language set forth in rule 1.110(b). [Id.] After thoroughly weighing its options [V2 196], BAC ultimately filed a motion to convert the court's order of dismissal without prejudice to one dismissing with prejudice so that this issue could be resolved on appeal. [V2 185-89.] The motion stated that the sole purpose for requesting dismissal with prejudice was to enable appellate review of the issue of proper verification under rule 1.110(b) and the perceived conflict with section 92.525. [V2 187.] At the hearing on August 8, 2011 [V2 190-203], the Stentzes opposed BAC's motion, contending BAC should instead be compelled to file an amended complaint violating the order and accept sanctions. [V2 206.] The trial court, however, recognized a fundamental and significant issue exists as to whether foreclosure complaints may be verified on information and belief. [V2 192.] Thus, for the limited purpose of appealing the verification issue, the court granted BAC's motion. [V2 196-97.] On September 5, 2011, the court entered an order dismissing BAC's verified amended complaint with prejudice. [V2 206-07.] This appeal followed.

{22696288;1}5

SUMMARY OF THE ARGUMENT BAC's amended foreclosure complaint was properly verified on "knowledge and belief" under rule 1.110(b) and should not have been dismissed. The trial court incorrectly prohibits verification of foreclosure complaints on information and belief. Contrary to the trial court's contention, Florida law does not support its holding. The order of dismissal must be reversed. ARGUMENT Standard of Review. The standard of review of the trial court's orders dismissing the complaint is de novo. Peak v. Outward Bound, Inc., 57 So. 3d 997, 998 (Fla. 2d DCA 2011); Holden v. Bober, 39 So. 3d 396, 400 (Fla. 2d DCA 2010). Argument. Revised rule 1.110(b), effective February 11, 2010, requires verification of residential mortgage foreclosure complaints. The rule states verification of a

document shall be 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." Fla. R. Civ. P. 1.110(b) (emphasis added).

{22696288;1}6

I.

BAC COMPLIED WITH RULE 1.110(B) BY VERIFYING THE FORECLOSURE COMPLAINT ON "KNOWLEDGE AND BELIEF." BAC's verified amended complaint includes a verbatim recitation of the

verification language provided in rule 1.110(b). Because this verification clearly complies with the rule, the trial court's dismissal was improper. Student Loan Mktg. Ass'n v. Morris, 662 So. 2d 990, 991 (Fla. 2d DCA 1995) ("Because the complaint complied with the rules of civil procedure and the approved form, it should not have been dismissed."). The Stentzes' argued below BAC's complaint was improperly verified under rule 1.110(b). [V2 194.] They misconstrued the rule. They contended rule 1.110(b) permits "documents"which are "separate and apart from the pleadings"to be verified by using the explicit verification language set forth in rule. They asserted the rule excludes "complaints" from using that verification language. [Id.] They concluded rule 1.110(b) allows documents to be verified on information and belief, but subjects complaints to a higher standardverification on personal knowledge. [Id.] The Stentzes' contention fails. The Florida Supreme Court explicitly stated the rule was "amended to require verification of foreclosure complaints." In re Amend. To The Fla. R. of Civ. Proc., 44 So. 3d 555, 556 (Fla. 2010) [hereinafter "In re Amend."] (emphasis added). Further, the Supreme Court placed the

verification language in rule 1.110, which governs "general rules of pleading." Fla.
{22696288;1}7

R. Civ. P. 1.110. A complaint is a permitted pleading but the other "documents," as claimed by the Stentzes, are not. See Fla. R. Civ. P. 1.100(a). The Stentzes' assertion that rule 1.110(b) is a two-part rule establishing separate verification standards is belied by the rule itself and the Florida Supreme Court. Rule 1.110(b) does not require verification of "documents" other than a foreclosure complaint. It only requires verification of foreclosure complaints by oath, affirmation, or "knowledge and belief." complaint was properly verified. II. FLORIDA LAW PERMITS FORECLOSURE VERIFICATION ON INFORMATION AND BELIEF. COMPLAINT BAC's amended foreclosure

Florida law does not support the trial court's holding that foreclosure complaints must be verified on personal knowledge, rather than information and belief. [V2 182, 253.] Where verification on information and belief is permitted by law, section 92.525(2) allows the verification to include the phrase, "to the best of my knowledge and belief." 92.525(2), Fla. Stat. Clearly, rule 1.110(b)explicitly providing for verification "to the best of my knowledge and belief"is a law that permits verification on information and belief. See Ballinger v. Bay Gulf Credit Union, 51 So. 3d 528, 529 (Fla. 2d DCA 2010) (verification based on "the best of my knowledge and belief" indicates an information and belief basis); cf. Dep't of Highway Safety & Motor Vehicles v. Padilla, 629 So. 2d 180, 181 (Fla. 3d DCA
{22696288;1}8

1993) (statute providing for affidavits based on "grounds for belief," is a law that permits verification on information and belief under section 92.525). There is no conflict between the statute and rule. BAC's verification is sufficient. Further, section 92.525 would be unconstitutional if it conflicted with rule 1.110(b) procedures governing foreclosure complaints. See Haven Fed. Savs. & Loan v. Kirian, 579 So. 2d 730, 732 (Fla. 1991) ("Where this Court promulgates rules relating to the practice and procedure of all courts and a statute provides a contrary practice or procedure, the statute is unconstitutional to the extent of the conflict."). The legislature may not encroach on the Supreme Court's power to establish judicial rules of practice and procedure. See In re Commitment of

Cartwright, 870 So. 2d 152, 157 (Fla. 2d DCA 2004). The amendment to rule 1.110(b) governs the procedure for filing foreclosure actions. See e.g., Fla. R. Civ. P. 1.030 (rules of procedure governing verification of pleadings). Section 92.525 could not provide the trial court authority to mandate language expressly contravening rule 1.110(b). The Stentzes rely on Muss v. Lennar Fla. Partners I, L.P., 673 So. 2d 84 (Fla. 4th DCA 1996) to contend BAC's verification is improper under section 92.525. [V2 246.] Muss has no bearing on this case. The statute at issue in Muss was silent as to the permitted verification basis. See 673 So. 2d at 85 (holding "knowledge and belief" verification was insufficient where section 702.10
{22696288;1}9

provided no basis for permitting verification on information and belief). Here, rule 1.110(b) is not silentit explicitly permits verification on "knowledge and belief." The trial court holding that Ballinger requires BAC's complaint to be verified on personal knowledge, as opposed to information and belief, is incorrect. [V2 252-53.] Ballinger centered on whether a complaint verified on information and belief was sufficient to entitle the movant to summary judgment. See 51 So. 3d at 529. Because the movant did not file a supporting affidavit, the trial court only considered the verified complaint at summary judgment. Id. This Court found the complaint served the same purpose as a summary judgment affidavit. Id. This Court reversed summary judgment because the complaint's verification, based on information and belief, did not comply with rule 1.510(e)'s personal knowledge requirement. Id. Ballinger only applies under the unique circumstance where a party attempts to use a verified complaint as summary judgment evidence. The case at hand is at the motion to dismiss stageBAC is not attempting to use the verified complaint as summary judgment evidence. The issue in Ballinger simply is not present in this case. Finally, the trial court indicated verification on information and belief is insufficient because the Supreme Court wanted to make sure there would be "someone who's going to take a hit for lying." [V2 153.] Penalties of perjury still apply even if verification is on information and belief. See Padilla, 629 So. 2d at
{22696288;1}10

181 ("an affidavit may be properly verified on information or belief and be sufficient to subject affiant to the penalties of perjury"). Thus, a foreclosure complaint's verifier still is exposed to penalties for lying. Each purported basis for finding BAC's verification was insufficient is meritless. The trial court's order of dismissal should be reversed. CONCLUSION BAC respectfully asks this Court to: (1) reverse the dismissal of prejudice; and (2) hold that it was improper for the trial court to mandate complaint verification language contravening rule 1.110(b). Respectfully submitted, _____________________________ NANCY. M. WALLACE (65897) KATHERINE E. GIDDINGS (949396) Akerman Senterfitt 106 E. College Ave., Suite 1200 Tallahassee, FL 32301 Telephone: 850-224-9634 Telecopier: 850-222-0103 katherine.giddings@akerman.com nancy.wallace@akerman.com

HALLIE S. EVANS (309028) GERMAINE M. SEIDER (85968) Akerman Senterfitt 401 E. Jackson Street, Suite 1700 Tampa, Florida 33602 Telephone: 813-223-7333 Telecopier: 813-223-2837 hallie.evans@akerman.com WILLIAM P. HELLER (987263) Akerman Senterfitt Las Olas Centre II, Suite 1600 350 East Las Olas Boulevard Fort Lauderdale, Florida 33301 Telephone: 954-759-8945 Telecopier: 954-463-2224 william.heller@akerman.com

Attorneys for BAC Home Loans Servicing, LP

{22696288;1}11

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing and the appendix to this Petition have been furnished by United States Mail to Gregory D. Clark, Esq., 1201 S. Highland Avenue, Suite 9, Clearwater, Florida 33756 (Co-Counsel for Appellees); Enrique Nieves, Ice Legal, PA, 1975 Sansburys Way, Suite 104, West Palm Beach, FL 33411 (Co-Counsel for Appellees); Tierra Del Sol Homeowner's Association, Inc. c/o Rizzetta & Company, Inc., R.A., 5844 Old Pasco Road, Suite 100, Wesley Chapel, Florida 33544; and, Lindsey D. Lamb, Florida Default Law Group, P.L., P.O. Box 25018, Tampa, Florida 33622 (Trial Counsel), this 23rd day of November, 2011. ________________________________ NANCY M. WALLACE

CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that the font used in this brief is the Times New Roman 14-point font and that the brief complies with the font requirements of Rule 9.210(a)(2) .

________________________________ NANCY M. WALLACE

{22696288;1}12