Chapter 6-2 The Form of the Complaint
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6-2 The Form of the Complaint
The Florida Rules of Civil Procedure include two Florida Supreme Court-approved mortgage foreclosure complaint templates among its other forms.24 While these forms provide reliable templates for the basic allegations, there are variables for a plaintiff to keep in mind when preparing its own complaint.25
6-2:1 Caption of the Complaint
Every complaint must include a caption containing the name of the court, a designation identifying the nature of the document, a space for the case number, and the full names of all the parties.26
6-2:2 Verification of the Complaint
Complaints to foreclose mortgages on residential properties must be verified under Rule 1.115(e) of the Florida Rules of Civil Procedure.27 The rule provides that it is sufficient to include an oath, affirmation, or a statement that "under penalties 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."28
Courts have construed this requirement according to the plain language of the rule and have declined to add requirements not set forth in the rule.29 Either the plaintiff or its agent, such as the servicer of the mortgage loan, may perform the verification.30 Persons verifying the complaint are not required to attach evidence to the complaint reflecting their authority to verify the complaint on behalf of the plaintiff.31 Signors are also not required to provide their title or position with their employer as part of the verification.32
The verification is not an element of a cause of action for the foreclosure of a mortgage on residential real property, but the plaintiff's failure to verify its complaint may result in a dismissal of the action without prejudice as a sanction for failure to comply with the rules.33 Defendants who wish to challenge the verification, or the lack of verification, must raise the issue in their affirmative defenses.34 Their failure to do so may result in a finding that they waived the challenge.35
6-2:3 Certification of Possession of the Promissory Note
If the plaintiff has possession of the original note, it is required by both the Florida Statutes and the Florida Rules of Civil Procedure to certify that it has possession of the original note when it files its complaint.36 The certification is not a prerequisite to the cause of action, however.37
The certification must identify the location of the original note and include the time and date on which the location was verified.38 Persons making the certification must identify themselves by name and title and identify the name of the person who personally verified that the plaintiff has possession of the original note.39 Copies of the note and any allonge to the note must be attached to the certification.40
A plaintiff's agent, such as its mortgage loan servicer or its attorney, may certify that it has possession of the original note on the plaintiff's behalf.41 The certification does not need to be notarized.42
6-2:4 Attachments to the Complaint
Rule 1.130 of the Florida Rules of Civil Procedure requires a plaintiff to attach to its complaint a copy of the contract on which the action is based.43 The rule is designed to help notify the defendant of "the nature and extent of the cause of action so that the defendant may plead with greater certainty."44
It generally is advisable for a plaintiff to attach a copy of the note, mortgage, and any other loan agreements on which it plans to rely to its complaint. A mortgage foreclosure complaint that does not attach an exhibit showing the existence of the agreement between the parties may be subject to dismissal without prejudice.45 The plaintiff is not required to attach the entire agreement, but it must include the material portions.46 In other words, the exhibits that the plaintiff attaches should be comprehensive enough to reflect the terms of the agreement and establish a cause of action for its breach.
For example, an appellate court has found that where the parties agreed to both a long-form mortgage and a short-form mortgage, and the plaintiff attached only the short-form mortgage to its complaint, the short-form mortgage was prima facie evidence of the terms of the parties' agreement.47 The short-form mortgage was introduced at trial and in combination with the promissory note, and it was sufficient to establish the terms of the parties' agreement and survive a motion to dismiss made at trial.
A plaintiff is not required under Rule 1.130 to attach a copy of the promissory note to the complaint in an action to foreclose a mortgage, though doing so will help the plaintiff establish its standing.48 Where the plaintiff seeks to foreclose the mortgage and also brings a count for damages under the note, the plaintiff should attach documents sufficient to establish the material terms of the note. This may be the note itself or the relevant portions of the mortgage.49
6-2:5 Minimizing the Filing of Sensitive Information in Exhibits
By their nature, mortgage foreclosure actions may involve the filing of documents containing sensitive financial information. The parties to a mortgage foreclosure action are obligated to minimize the filing of such information like parties to any other form of civil litigation.
Although Rule...
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