Deutsche Bank National Trust Company seeks certiorari review of a
nonfinal order dismissing its foreclosure action against Burke and Nancy Prevratil and
granting Deutsche Bank sixty days to amend its complaint.
We conclude that the trial court departed from the essential requirements of law by requiring Deutsche Bank, not its loan servicer, to verify the foreclosure complaint. Accordingly, we grant the petition for writ of certiorari and quash the trial court’s order.
Select Portfolio Services (SPS), Deutsche Bank’s loan servicer, verified
the foreclosure complaint as attorney in fact on July 6, 2011. Florida Rule of Civil
Procedure 1.110(b) and section 92.525, Florida Statutes (2011), govern verification.
Rule 1.110(b) provides, in pertinent part, as follows:
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
“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.”
Section 92.525 provides, in pertinent part, as follows:
(1) When it is authorized or required by law, by rule
of an administrative agency, or by rule or order of court that
a document be verified by a person, the verification may be
accomplished in the following manner:
(a) Under oath or affirmation taken or administered
before an officer authorized under s. 92.50 to administer
(b) By the signing of the written declaration
prescribed in subsection (2).
(2) A written declaration means the following
statement: “Under penalties of perjury, I declare that I have
read the foregoing [document] and that the facts stated in it
are true,” followed by the signature of the person making the
declaration, except when a verification on information or
belief is permitted by law, in which case the words “to the
best of my knowledge and belief” may be added. The
written declaration shall be printed or typed at the end of or
immediately below the document being verified and above
the signature of the person making the declaration.
In their motion to dismiss, the Prevratils alleged that Deutsche Bank failed
to comply with rule 1.110(b) because SPS was not the plaintiff and its verification failed
to assert that SPS was the loan servicer or otherwise had any knowledge of the
complaint’s allegations. The Prevratils relied on the supreme court’s statement in In re
Amendments to the Florida Rules of Civil Procedure, 44 So. 3d 555, 556 (Fla. 2010):
[R]ule 1.110(b) is amended to require verification of mortgage foreclosure complaints involving residential real property.
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.
See also In re Amendments to the Fla. Rules of Civil Procedure-Form 1.996 (Final
Judgment of Foreclosure), 51 So. 3d 1140, 1140-41 (Fla. 2010) (“In light of recent
reports of alleged document fraud and forgery in mortgage foreclosure cases, this new
requirement is particularly important.”).
In response to the motion, Deutsche Bank filed a copy of the February 22,
2011, power of attorney appointing SPS its attorney in fact in connection with all
mortgage loans serviced by SPS. The trial court dismissed the complaint but allowed
Deutsche Bank an opportunity to amend. Deutsche Bank argues that the trial court imposed restrictions beyond those of rule 1.110(b). We acknowledge that the verification requirement is a new addition to the Florida Rules of Civil Procedure; no appellate case has addressed whether rule 1.110(b) allows verification by power of attorney. Based on the absence of controlling case law, the Prevratils argue that the order does not violate a clearly established principle of law. We disagree.
To obtain certiorari relief, Deutsche Bank must demonstrate ” ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.’ ” SeeTrucap Grantor Trust 2010-1 v. Pelt, 84 So. 3d 369, 371 (Fla. 2d DCA 2012) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004), and citing Fassy v. Crowley, 884 So. 2d 359, 363 (Fla. 2d DCA 2004)). The second and third prongs are jurisdictional. Id. at 371.
Material Injury not Correctable on Appeal In granting the motion to dismiss, the trial court imposed a verification requirement that rule 1.110(b) does not. If Deutsche Bank filed the amended complaint as directed by the trial court, it could obtain a foreclosure judgment. “It is elementary that a party cannot appeal from, or file any proceedings to review, an order or judgment in his favor.” Emp’rs Fire Ins. Co. v. Blanchard, 234 So. 2d 381, 382 (Fla. 2d DCA 1970) (citing Paul v. Kanter, 155 So. 2d 402 (Fla. 3d DCA 1963)). Thus, in that case,
Deutsche Bank would be unable to obtain an adequate remedy by postjudgment
appeal. See Gen. Motors Acceptance Corp. v. Davis, 664 So. 2d 1025, 1027 (Fla. 2d
DCA 1995). Deutsche Bank would be deprived of its right to delegate verification duties
to its loan servicer. Departure from the Essential Requirements of the Law
“A departure from the essential requirements of the law is more than simple legal error; rather, it is ‘a violation of a clearly established principle of law resulting in a miscarriage of justice.’ ” Trucap Grantor Trust 2010-1, 84 So. 3d at 371 (quoting Fassy, 884 So. 2d at 364). Clearly established law emanates from a variety of sources, including but not limited to case law and to “an interpretation or application of a statute, a procedural rule, or a constitutional provision.” Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 890 (Fla. 2003). In this case, the trial court departed from the essential requirements of law by refusing to give effect to SPS’s power of attorney. See § 709.08, Fla. Stat. (2010).
Section 709.08, Florida Statutes (2010),1 provided, in pertinent part, as
(6) PROPERTY SUBJECT TO DURABLE POWER OF
ATTORNEY.”” Unless otherwise stated in the durable power
of attorney, the durable power of attorney applies to any
interest in property owned by the principal, including, without
limitation, the principal’s interest in all real property, including
homestead real property; all personal property, tangible or
intangible; all property held in any type of joint tenancy,
including a tenancy in common, joint tenancy with right of
survivorship, or a tenancy by the entirety; all property over
which the principal holds a general, limited, or special power
of appointment; choses in action; and all other contractual or
statutory rights or elections, including, but not limited to, any
rights or elections in any probate or similar proceeding to
which the principal is or may become entitled.
Section 709.08 was repealed along with sections 709.01, 709.015, and
709.11, and replaced with sections 709.2101″“.2402, after execution of the power of
attorney and the filing of the complaint here, but before the date of the order on review.
See ch. 2011-210, § 33, at 3273; ch. 2011-210, § 2-33, at 3254-3273, Laws of Fla.,
effective Oct. 1, 2011.
(7) POWERS OF THE ATTORNEY IN FACT AND
(a) Except as otherwise limited by this section, by other
applicable law, or by the durable power of attorney, the
attorney in fact has full authority to perform, without prior
court approval, every act authorized and specifically
enumerated in the durable power of attorney.
Section 709.08(7)(b)(2) provides that the attorney in fact may not “[m]ake
any affidavit as to the personal knowledge of the principal.” The Prevratils concede,
however, that “Rule [1.110] does not require that the verification be based on personal
knowledge.” It requires only that the plaintiff verify that “the facts alleged therein are
true and correct to the best of my knowledge and belief.”2
The verification shows that SPS verified the complaint as Deutsche Bank’s
attorney in fact. The power of attorney predates the filing of the complaint.3 The power
of attorney specifically allows SPS to act as Deutsche Bank’s attorney in fact
8. With respect to a Mortgage or Deed of Trust, the
foreclosure, the taking of a deed in lieu of foreclosure, or the
completion of judicial or non-judicial foreclosure or
termination, cancellation or rescission of any such
foreclosure . . . .
We note that section 709.08(7)(b)(6) states that an attorney in fact may
not “[e]xercise powers and authority granted to the principal as trustee or as courtappointed fiduciary.” The issue of whether this affects SPS’s authority to exercise
powers granted to Deutsche Bank as Indenture Trustee was not raised below and is not
raised here. We will not address the issue.
Section 709.2106, Florida Statutes (2011), provides, in pertinent part, as
(2) A power of attorney executed before October 1, 2011, is
valid if its execution complied with the law of this state at the
time of execution.
(3) A power of attorney executed in another state which does
not comply with the execution requirements of this part is
valid in this state if, when the power of attorney was
executed, the power of attorney and its execution complied
with the law of the state of execution. This power of attorney was executed in California and is governed by New York law.
Of course, Deutsche Bank’s grant of the power of attorney does not
absolve Deutsche Bank of its due-diligence responsibility. Deutsche Bank is responsible for SPS’s actions as its agent pursuant to the power of attorney.
See Babul v. Golden Fuel, Inc., 990 So. 2d 680, 684 (Fla. 2d DCA 2008)
(holding agent acting within course and scope of agency relationship with disclosed
principal not liable for principal’s debts or obligations arising from contracts agent
negotiates or executes on principal’s behalf).
We grant the petition for writ of certiorari and quash the trial court’s order.