Tuesday, March 22, 2011

Brevard County Foreclosure Court in Florida Holds Banks and Fraudclosure Mills' Feet to the Fire

The Brevard County Mortgage Foreclosure Division issued its third revised policies and procedures last month. Excerpts from these policies and procedures are posted below, along with bold highlights and italics to make for a quicker read:


The Court continues to see hybrid jurats on affidavits and some affidavits which conclude with “to the best of my knowledge and belief.” To be an affidavit, the Notary Public or other officer taking the oath must state in the jurat that the party was sworn and that the matters in the affidavit are true.

There also appears to be a misconception as to the meaning of a verified pleading when allowed by a statute or rule of procedure. There also appears to be a misconception of the meaning of language necessary for an oath or affirmation versus an acknowledgement. The question arises frequently in certain actions under the prejudgment writ of replevin statute and prejudgment writ of garnishment statutes.

An oath or verification requires a swearing or affirmation which would subject the person signing the pleading to a prosecution for perjury if the facts sworn to be true are false and the person knew they were false when
sworn to or affirmed.

An acknowledgement is a statement by a person qualified to take oaths andacknowledgements that the person purporting to sign the document (such as a deed) produced identification or was known personally and stated that he or she was the person who signed the document, not that the content of the

document is true.

An oath or verification which is qualified by “to the best of my knowledge and belief” does not fulfill the requirements of verification or oath or affirmation unless specifically permitted by the applicable rule or statute such as a personal representative of an estate who cannot have personal knowledge of all the facts but must rely on others. See Rule 5.020(e), Fla. Prob.R. and Section 731.104, Florida Statutes 2009 as examples.

A recent change in Rule 1.10, Fla.R.Civ.P. adds the following language:

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.”

This is allowed because the affiant could not have personal knowledge of all the facts but must rely upon others.

Read on.

Brevard Mortgage Foreclosure Procedures

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