In the District Court of Appeal

Second District of Florida

CASE NO. 2D11-6137
(Lower Tribunal Case No. 09-018268-CI-l1)
U.S. BANK NATIONAL ASSOCIATION, ET AL.,
Petitioner,
v.
GRACIELA MILLS GLASS and STEVEN GLASS,
Respondents.
RESPONDENTS' RESPONSE TO PETITION FOR WRIT OF
CERTIORARI
Respectfully Submitted,
Matthew D. Weidner, P.A.
Counsel for Respondents
1229 Central Avenue
S1. Petersburg, FL 33705
Telephone: (727) 894-3159
Facsimile: (727) 894-2953
Email: weidner@mattweidnerlaw.com
TABLE OF CONTENTS
Table ofAuthorities ..................................................................................................................... iii
Preliminary Statement ................................................................................................................. vi
Intro<:luction.................................................................................................................................. 1
Statement ofthe Case and Facts .................................................................................................. 1
Standard ofReview ...................................................................................................................... 3
Summary ofthe Argument .......................................................................................................... 4
Argument.. '" ................................................................................................................................ 5
I. THE TRIAL COURT'S ORDER DOES NOT DEPART FROM THE
ESSENTIAL REQUIREMENTS OF LAW BECAUSE THERE IS NO
CLEARLY ESTABLISHED LEGAL PRINCIPLE WHICH THE ORDER
VIOLA1ES .............................................................................................................................................. 5
II. THE TRIAL COURT'S ORDER DOES NOT CAUSE IRREPARABLE INJURY
TO PETITIONER BECAUSE PETITIONER IS NOT CALLED TO PERJURE
ITSELF AND BECAUSE IT DOES NOT DEPRIVE IT FROM
FORECLOSlNG......................................................................... 10
ill.EVEN IF AN IRREPARABLE INJURY WAS INFLIC1ED UPON
PETITIONER, SUCH INJURY COULD BE CORREC1ED UPON POST
JUOOMENT APPEAL .................................................................................................................... 13
IV. THE FLORIDA SUPREME COURT HAS ALREADY CONSIDERED THE
ARGUMENTS RAISED BY PETITIONER AND HAS DECLINED TO
PROVIDE THE OPINION IT SEEKS ......................................................................................14
V. PETITIONER'S DUE PROCESS ARGlJMENTS FAILS AS A MATTER OF
LAW.........................................................................................................................................................15
a. Applying the revised Rule 1.110(b) to amended complaints filed after
February 11, 2010 is not a retroactive application ofthe Rule ..................... 15
b. Petitioner was afforded notice and the opportunity to be heard................... 17
VI. THE 1RIAL COURT CORRECTLY DISREGARDED PETITIONER'S
OBJECTION TO TIffi OBJECTION DID NOT ESTABLISH FACT ..................... 18
Conclusion................................................................................................................................... 19
Certificate ofService ...................... -........................................................................................... 20
Certificate ofCompliaIlce .......................................................................................................... 21
11
TABLE OF AUTHORlTIES
CASES
Ballinger v. Bay GulfCredit Union,
51 So. 3d 528 (Fla. 2d DCA 201 0) ..................................................................................... 12
Belair v. Drew,
770 So. 2d 1164 (Fla. 2000) ................................................................................................... 3
Blimpie Cap. Venture v. Palms Plaza,
636 So. 2d 838 (Fla. 2d DCA 1994) .................................................................................. 19
Campbell v. Salman,
384 So. 2d 1331(Fla. 3d DCA 1980) ................................................................................. 12
Combs v. State,
436 So .. 93 (Fla. 1983) .............................................................................................................. 6
Department ofLaw Enforcement v. Real Property,
588 So. 2d 957 (Fla. 1991) ................................................................................................... 17
Feltus v. u.s. Bank National Association,
Op. at 3, n. 1 (Fla. 2d DCA January 27,2012).................................................................. 2
First Mortgage Investors v. Boulevard National Bank ofMiami,
327 So.2d 830 (Fla.3d DCA 1976) ..................................................................................... 12
Fuentes v. Shevin,
407 U.S. 67, 92 S.Ct. 1983,32 L.Ed.2d 556 (1972) ...................................................... 17
Haines City Cmty. Dev. V. Heggs,
658 So. 2d 523 (Fla. 1995) ..................................................................................................... 6
Hordis Bros., Inc. v. Sentinel Holdings, Inc.,
562 So. 2d 715, 718 (Fla. 3d DCA 1990 ........................................................................... 12
In re: Amend. to the Fla. R. Civ. P.,
44 So. 3d 555 (Fla. 20 1 0) .................................................................................................... 7, 8
111
In re: Amend to the Fla. R. Civ. P. - Form 1.966,
51 So. 3d 1140 (Fla. 2010) ................................................................................................. 8, 9
Ivey v. Allstate Insurance Co.,
774 So. 2d 679 (Fla. 2000) ................................................................................................. 6, 7
Leon Shaffer Golnick Advertising v. Cedar,
423 So. 2d 1015,1017 (Fla. 4th DCA 1982) ............................................................. 18,19
Martin-Johnson, Inc. v. Savage,
509 So. 2d 1097 (Fla. 1987) .................................................................................................. 3, 11
Pearlstein v. King,
610 So. 2d445 (Fla. 1994) ............................................................................................. 15, 16
Pino v. Bank ofNew York Mellon,
57 So. 3d 950 (Fla. 4th DCA 2011 ) ................................................................................ 9, 10
Silber v. Campus Sweater & Sportswear,
313 So.2d 409 (Fla. 1st DCA 1975) ................................................................................... 12
Singleton v. Greymar Associates,
882 So. 2d 1004 (Fla. 2004) ................................................................................................. 14
State v. Brugman,
588 So. 2d 279 (Fla. 2d DCA 1991) .................................................................................. 19
State ex reI. Gore v. Chillingworth,
126 Fla. 645, 171 So. 649 (1936) ........................................................................................ 17
Stilson v. Allstate Insurance Co.,
692 So. 2d 979 (Fla. 2d DCA 1997) .......................................................................... 6, 7,10
Wright v. Sterling Drugs,
287 So.2d 376 (Fla. 2d DCA 1973) .................................................................................... 11
STATUTES AND RULES
Fla. Stat. 92.525 (2011) .............................................................................................................. 3
IV
Rule 9.110, Fla. R. App. Pro. (2011) ................................................................................... 14
Rule 1.0700), Fla. R Civ. Pro. (2011)...................................................................................... 16
Rule 1.11O(b), Fla. R Civ. Pro. (2011 )..............................................................................passim
Rule 1.190(c), Fla. R Civ. Pro. (2011) ..................................................................................... 15
Rule 1.420(a), Fla. R. Civ. Pro. (2011) ..................................................................................... 14
Rule 4-1.7(9), Florida Rules of Professional Conduct (2011) ...................................... 13
v
PRELIMINARY STATEMENT
During the drafting of this Response, undersigned counsels noticed
something curious about the appendix filed by U.S. BANK NATIONAL
ASSOCIATION, ET AL. ("Petitioner"). Specifically, Document 3, which claims
to be the foreclosure complaint filed in this matter, contained a copy of the alleged
promissory note which contained two endorsements on it. This struck undersigned
counsels as incorrect because they remembered the complaint which existed in the
court file did not contain a copy of the note attached to it. In fact, the absence of a
note endorsed in blank attached to the complaint was one of the many reasons the
trial court dismissed the complaint with leave to amend.
On February 6, 2012 undersigned counsel reviewed the court file. As
suspected, the complaint filed in this case does not contain a copy of the alleged
note with endorsements affIXed. Indeed, no note is attached to the complaint
whatsoever. A true and correct copy of the complaint as found in the court file is
attached hereto as Exhibit "1".
The crux of Petitioner's petition is its absolute unwillingness to verify the
amended complaint as required by the trial court. Instead, Petitioner wishes to
delegate this duty to a "servicing" agent. Undersigned counsels respectfully
submit that Petitioner's improper filing of what it claimed to be the complaint
exemplifies exactly why it rather than its servicing agent, should be charged with
vi
verifying the amended complaint.
Moreover, undersigned counsels also
respectfully submit that this improper filing is grounds for dismissal or denial of
the petition.
VII
INTRODUCTION
In what is a case of first impression in this State, Petitioner, plaintiff in the
underlying foreclosure action, seeks a writ of certiorari as to a nonfinal and
nonappealable order dismissing its complaint with leave to amend. Despite
Petitioner's attempt to distract this Court from the true issues under review, the
only questions Petitioner's inappropriate petition present are: (1) whether the trial
court departed from the essential requirements of law when it rendered its decision;
and (2) whether the trial court's order causes Petitioner to suffer irreparable harm
which cannot be corrected on post-judgment appeal. Since the answer to both
questions is a resounding "no," Petitioner's writ should be denied with all
deliberate speed.
STATEMENT OF THE CASE AND FACTS
As Petitioner correctly points out, it filed a two count complaint against
GRACIELA MILLS GLASS and STEVEN GLASS ("Respondents"). The first
count pled for mortgage foreclosure of residential real property owned by
Respondents, and the second prayed for reestablishment of what was purportedly a
lost, stolen, or destroyed promissory note.
At some point after commencing the action, the purported "original note"
was apparently discovered and filed with the Court. The alleged original note was
substantially different than the copy of the note attached to the complaint in that
1
the purported original contained an endorsement in blank whereas no such
endorsement existed on the copy. I Notwithstanding this fact, and without ever
amending the complaint to include a copy of the purported original note as an
attachment, Petitioner set Respondents' motion to dismiss for hearing on
November 4, 2011.
At the hearing, the trial court granted Respondents' motion and ordered
Petitioner to file an amended complaint within 45 days of the hearing. In addition,
the trial court ordered, pursuant to the revised Fla. R. Civ. P. 1.11 O(b), that the
amended complaint be verified, that the verification be in accordance with Fla.
Stat. 92.525(20 11), and that the verification be executed by Petitioner itself.
Petitioner thereafter filed an unverified objection to a proposed order which would
have required it, rather than its servicing agent, to verify the amended complaint.
This objection argued, inter alia, that: (l) it had some unnamed servicing agent;
and (2) that there was a power of attorney which allowed said unnamed party to
execute documents in Petitioner's name.
It is of critical importance to note that in its objection Petitioner failed to
name the servicing agent; failed to qualify any of the statements by either verifying
I Indeed, this Court recently held the filing of an original note, endorsed in blank,
is an ineffective method of amending a complaint for foreclosure where the note
attached to the original complaint failed to include such an endorsement and the
complaint also pled for lost note. Feltus v. US. Bank National Association, Slip
Op. at 3, n. 1 (Fla. 2d DCA January 27,2012).
2
the objection under penalty of perjury or by providing an affidavit in support of it;
and failed to attach an authenticated copy of the alleged power of attorney.
Consequently, Petitioner's objection was nothing more than a series of unsworn
allegations by its counsel, none of which were stipulated to by Respondents'
counseL The trial court thus correctly disregarded Petitioner's objection when it
rendered a written order directing Petitioner, rather than its servicing agent, to
verify the amended complaint.
Because Petitioner is unwilling and, it argues, completely unable, to verify
the amended complaint itself as required by the trial court, it has sought certiorari
review on the limited aspect of the trial court's order requiring Petitioner itself to
verify its own amended complaint.
STANDARD OF REVIEW
To obtain a common law writ of certiorari, a petitioner must demonstrate:
(1) that the lower court departed from the "essential requirements of law" in
rendering a decision; (2) a material injury resulting from this departure; and (3)
that the material injury cannot be corrected on post-judgment appeaL See e.g.
Belair v. Drew, 770 So. 2d 1164, 1166 (Fla. 2000); Martin-Johnson, Inc. v.
Savage, 509 So. 2d 1097, 1099 (Fla. 1987).
3
SUMMARY OF ARGUMENT
As a threshold matter, the petition should be summarily denied because the
lower court's order does not depart from any essential requirement. of law, because
Petitioner suffers no material injury as a result of the order, and because even if
Petitioner suffered an injury, the injury could be corrected on post-judgment.
More exactly, Petitioner fails to point to any clearly established principle of law
which the trial court violated that resulted in a miscarriage ofjustice. Indeed, there
is no precedent that Petitioner can point to which the trial court violated because no
such precedent exists.
Additionally, Petitioner suffers no material injury resulting from the trial
court order because, contrary to its erroneous arguments, it is not forced to perjure
itself since Fla. R. Civ. P. 1.11 O(b) actually permits the verification to be based
upon hearsay statements. Therefore, the only party which is "depriving it of its
legal right to foreclose" is itself.
Even if an injury was suffered by nonfinal order, such an in injury could be
corrected on post-judgment appeal. Specifically, Petitioner could: (1) take a fmal
dismissal, with or without prejudice, and appeal to this Court; (2) take a voluntary
dismissal without prejudice and refile in the unnamed servicer's name; or (3) refile
the foreclosure action alleging a different default even after taking a dismissal with
prejudice.
4
While this argument alone is enough to deny Petitioner the relief it seeks, its
petition also incorrectly argues that the trial court's order imposed "additional
restrictions that were [not] contemplated by the Florida Supreme Court." See
Petitioner's Petition for Writ of Certiorari, pg. 8. Contrary to this assertion, the
Florida Supreme Court in fact contemplated Petitioner's position and found it
wanting when it denied SHAPIRO & FISHMAN, LLP's ("Shapiro") motion for
rehearing or clarification on the revised Rule 1.11 O(b) on June 3, 2010.
Likewise, Petitioner's argument that it was denied due process also fails as a
matter of law because applying Rule 1.11 O(b) to amended complaints filed after
February 11, 2010 is not a retroactive application of the Rule and because
Petitioner was given both notice and the opportunity to be heard as contemplated
by the Florida Constitution.
Finally, the petition should be denied because its "objection" to the trial
court's order was nothing more than a series of unsworn allegations by its counsel
that the trial court rightly disregarded. Indeed, the near entirety of the petition is
nothing more than a chain of self-serving and contradictory statements that are not
supported, in any way, by competent record evidence.
ARGUMENT
I. THE TRIAL COURT'S ORDER DOES NOT DEPART FROM THE
ESSENTIAL REQUIREMENTS OF LAW BECAUSE THERE IS
NO CLEARLY ESTABLISHED LEGAL PRINCIPLE WmCH
THE ORDER VIOLATES
5
The trial court's order is simply not reviewable upon certiorari because there
is no clearly established principle of law that it the court violated and therefore
there was no departure from the essential requirements of law. The Florida
Supreme Court first promulgated the "essential requirements of law" standard in
1894 when it "endorsed" the standard of the Illinois courts. See Haines City Cmty.
Dev. V. Heggs, 658 So. 2d 523, 526 (Fla. 1995). The Court thereafter clarified the
standard by providing that "the district courts of appeal should not be as concerned
with the mere existence oflegal error as much as with the seriousness ofthe error."
Combs v. State, 436 So. 93, 95 (Fla. 1983). Courts do have "a large degree of
discretion" in determining whether an order departs from the essential
requirements of law but they "should exercise this discretion only when there has
been a 'violation ofa clearly established principle oflaw resulting in a miscarriage
ofjustice." Id. at 96. (Emphasis added).
In Ivey v. Allstate Insurance Co., 774 So. 2d 679 (Fla. 2000), Florida's High
Court quashed a decision of the Third District to grant certiorari, declaring that the
Third District "merely disagreed with the circuit court's interpretation of the
applicable law, which, as explained in Heggs, is an improper basis for common
law certiorari." Id. at 683. The lvey Court also quoted Judge Altenbernd's opinion
in Stilson v. Allstate Insurance Co., 692 So. 2d 979 (Fla. 2d DCA 1997), which
provided that without controlling precedent, there could at most be a
6
misapplication of correct law, not a violation of "a clearly established principle of
law." Ivey, 774 So. 2d at 682 (quoting Stilson, 692 So. 2d at 982-83). The Ivey
Court therefore concluded that district courts should not exercise certiorari merely
"to provide precedent where precedent is needed." Ivey, 774 So. 2d at 683
(quoting Stilson, 692 So. 2d at 982-83).
Here, Petitioner fails to point to any clearly established principle of law
which would validate its argument that the trial court's order departs from the
essential requirements of law. Moreover, Petitioner cannot do so because no such
precedent exists. Instead, Petitioner relies solely on its own interpretation of Fla.
R. Civ. P. 1.110(b) which was revised by the Florida Supreme Court on February
11, 2010. See In re: Amend. to the Fla. R. Civ. P., 44 So. 3d 555 (Fla. 2010).
Because there is no controlling precedent, at most the trial court could have
misapplied the correct law, not violate a clearly established principle of law.
Consequently, the petition requests that this Court espouse Petitioner's
interpretation of the Rule merely to provide precedent because it feels precedent is
necessary.
Petitioner's argument actually gIves great credence to the trial court's
interpretation of the verification rule. On page nine of its petition, Petitioner lists
the four reasons given for the amendment to Rule 1.11 O(b). Even a cursory glance
of those reasons reveal that the Florida Supreme Court intended to hold foreclosing
7
plaintiffs, and not their agents, responsible for the verification of foreclosure
complaints and that at least three of the purposes have been violated in this case.
To begin, Petitioner apparently does not want to appropriately investigate
and verify that it owns and holds the note and mortgage and that the allegations of
the complaint it filed are correct, the first reason given for the rule change. In re:
Amend., 44 So. 3d at 556. Rather, Petitioner intends to pass this responsibility off
to some unnamed "servicing agent." Second, Petitioner has wasted judicial
resources through filing an inappropriate "lost note" count in its complaint, even
though the "lost" has at some point in time become "found." Wasting precious
judicial resources these improperly pled counts was the second reason given for the
amendment to Rule 1. 110(b). Id. Finally, and perhaps most importantly,
Petitioner attempts to avoid any sort of sanction the trial court may levy against it
for making false allegations, the last reason given for the rule change. Id. Instead
of taking ownership of the allegations which it has set forth in its complaint,
Petitioner wishes to hide behind its agent and thus escape any culpability which
may come from making false allegations.
Indeed the Florida Supreme Court later reiterated that the rule change was
intended to hold plaintiffs responsible for the allegations of the complaint when it
issued its opinion in In re: Amend. to the Fla. R. Civ. P. Form 1.966, 51 So. 3d
1140 (Fla. 2010). There, the Court had this to say about the amendment:
8
[R]ule 1.11 O(b) was amended to require verification of mortgage
foreclosure complaints involving residential real property. One ofthe
primary purposes of this amendment was to ensure that plaintiffs
and plaintiffs' counsel do their ((due diligence" and appropriately
investigate and verifY ownership of the note or right to enforce the
note and ensure that the allegations of the complaint are accurate. In
light of recent reports of alleged document fraud and forgery in
mortgage foreclosure cases, this new requirement is particularly
important.
Id. at 1140-41. (Emphasis added). The key words in that opinion are that the
amendment was to ensure that plaintiffs do their due diligence in ensuring that the
allegations of the complaint as being accurate. Thus, the Court clearly intended
that plaintiffs verifY the complaint because of questions regarding fraud and
impropriety within the foreclosure arena.
Nowhere was this alleged fraud more perpetrated than in the case of Pino v.
Bank ofNew York Mellon, 57 So. 3d 950 (Fla. 4th DCA 2011), where the Fourth
District bluntly stated that "many, many mortgage foreclosures appear tainted with
suspect documents." Id. at 954. There, Bank of New York brought a foreclosure
action against Pino but voluntary dismissed its action rather than face sanctions
regarding a possibly fraudulent assignment of mortgage. Id at 951-52. The trial
court refused to set aside the voluntary dismissal and the Fourth District affirmed,
but certified the issue to the Florida Supreme Court as one of great public
importance. Id at 955.
9
Perhaps most important to the discussion here is Judge Polen's dissent in
Pino, in which he declared that the amendment to Rule 1.11 O(b) gave trial courts
wide latitude to punish plaintiffs for fraudulent allegations, citing the fourth reason
given for the rule change. Id. at 959. If Petitioner is not required to verify the
amended complaint here, how could the trial court ever sanction it if it engaged in
the same reprehensive behavior that the plaintiff in Pino allegedly engaged in?
Finally, Petitioner's argument that denial of its petition would have a
"chilling" effect on "thousands" of foreclosure cases because it would create
different standards in different circuits needs but a word. Judge Altenbemd
considered this scenario in Stilson and concluded that while "conflicting
approaches within the numerous circuits could evolve" and that "there may never
be 'clearly established principles of law' governing a wide array of.. .issues," this
was not a basis for certiorari relief. Stilson, 692 So. 2d at 982-83.
Therefore, because the trial court's order violates no established principle of
law, there is no departure from the essential requirements of law and the petition
should be denied.
II. THE TRIAL COURT'S ORDER DOES NOT CAUSE
IRREPARABLE INJURY TO PETITIONER BECAUSE
PETITIONER IS NOT CALLED TO PERJURE ITSELF AND
BECAUSE IT DOES NOT DEPRIVE IT FROM FORECLOSING
In addition to not being reviewable under certiorari because the order does
not depart from the essential requirements of law, the trial court's order does not
10
cause irreparable harm to Petitioner. Case law imposes stringent conditions on
what may be considered "irreparable harm." For instance, incurring considerable
time and expenses due to litigation of a non-issue is not the basis for seeking
certiorari under a theory of irreparable harm. See e.g. Wright v. Sterling Drugs,
Inc., 287 So.2d 376 (Fla. 2d DCA 1973), cert. denied, 296 So.2d 51 (1974).
Moreover
[ e ]ven when the order departs from the essential requirements of the
law, there are strong reasons militating against certiorari review. For
example, the party injured by the erroneous interlocutory order may
eventually win the case, mooting the issue, or the order may appear
less erroneous or less harmful in light of the development of the case
after the order.
Savage, 509 So. 2d at 1100.
Here, Petitioner complains that the trial court's order would cause it
irreparable harm because it forces it to either choose between perjuring itself, as it
has no personal knowledge regarding the allegations of the complaint, or giving up
its alleged right to foreclose? Neither is true. As to the first alleged injury,
2 It is also wholly unclear how Petitioner has no knowledge regarding any of the
allegations of the complaint but is able to make certain self-serving assertions in its
petition. Most prominently, Petitioner asserts on page 18 of the petition that
"Respondents have been in default since June 1, 2009 and have missed thirty-one
(31) payments, which total approximately ... $295,384.62." This allegation, in
addition to being wholly irrelevant to the subject petition, contradicts Petitioner's
statement on page 16 of the petition, which provides that "the individual signing
on behalf of{Petitioner] would not have the requisite knowledge about the facts
plead, except that {Respondent] is the owner and holder ofthe note." (Emphasis
added). Consequently, Petitioner's allegation regarding the alleged default and
11
Petitioner incorrectly analyzes the verification requirement under an affidavit
standard, which requires that the statements averred to be based upon personal
knowledge. Under this standard, affidavits made upon "information and belief'
are inadmissible because they may contain hearsay statements. See e.g. Hordis
Bros., Inc. v. Sentinel Holdings, Inc., 562 So. 2d 715, 718 (Fla. 3d DCA 1990);
Campbell v. Salman, 384 So. 2d 1331, 1333 (Fla. 3d DCA 1980); First Mortgage
Investors v. Boulevard National Bank of Miami, 327 So.2d 830 (Fla.3d DCA
1976); Silber v. Campus Sweater & Sportswear, 313 So.2d 409 (Fla. 1st DCA
1975).
The verification rule, however, clearly allows for verification upon
information and belief. See Fla. R. Civ. P. 1. 110(b) (providing, in pertinent part,
that "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 ofmy knowledge and belief") In fact, this Court recently ruled
that a complaint verified on knowledge and belief is not based upon personal
knowledge and therefore inadmissible for summary judgment purposes. See
Ballinger v. Bay GulfCredit Union, 51 So. 3d 528 (Fla. 2d DCA 2010).
alleged amounts due to it on page 18 clearly eviscerates its argument that it has no
knowledge whatsoever regarding the allegations ofthe complaint.
12
This allays all of Petitioner's fears that it will be subject to perjury since it
apparently has no personal knowledge whatsoever regarding the contents of the
complaint. If Petitioner truly knows nothing about the allegations of the
complaint, all the trial court order requires is that it contact the unnamed servicing
agent and have that party verify the complaint's allegations before Petitioner
executes the verification. This would be wholly acceptable under Rule 1.11O(b)
because, as stated, the rule actually allows for the verification to be made upon
hearsay statements.
3
Therefore, because the trial court's order does not contain any irreparable
injury to Petitioner, the petition should be denied.
III. EVEN IF AN IRREPARABLE INJlJRY WAS INFLICTED UPON
PETITIONER, SUCH INJURY COULD BE CORRECTED UPON
POST-JUDGMENT APPEAL
At this juncture, the trial court is not concerned with who the foreclosing
plaintiff is but only that that party verifies the complaint upon information and
belief. IfPetitioner is unwilling to comply with this, it has several options. First, it
3 Petitioner's claim that it only has "personal knowledge" of whether it owns and
holds the note and mortgage should be closely scrutinized. This claim means that
the unnamed servicing agent has "personal knowledge" as to whether Petitioner
hired its law firm to represent it, an allegation made in the complaint. However,
for this to be true, the servicing agent must have been the one who hired that law
firm. If this is the case, ethical issues regarding loyalty to the client are implicated.
See Rule 4-1.7(9), Florida Rules of Professional Conduct (2011) (which provides
that an attorney may be paid from a source other than a client if the client consents
and the arrangement does not compromise the lawyer's duty of loyalty to the
client).
13
can allow the trial court to enter a final order dismissing the action with or without
prejudice for failure to comply with the court's order and then appeal that order to
this Court pursuant to Fla. R. App. P. 9.110 (2011). Second, it can take a voluntary
dismissal of its action without prejudice pursuant to Fla. R. Civ. P. 1.420(a) and
then have its unnamed servicing agent refile the complaint in that party's name.
Finally, even if a dismissal with prejudice is effectuated against Petitioner, it can
still file a new action for foreclosure by simply alleging a different default. See
e.g. Singleton v. Greymar Associates, 882 So. 2d 1004 (Fla. 2004).
Therefore, even if some irreparable injury was inflicted upon Petitioner,
such injury could be corrected upon post-judgment appeal. As a result, the petition
should be denied.
IV. THE FLORIDA SUPREME COURT HAS ALREADY
CONSIDERED THE ARGUMENTS RAISED BY PETITIONER
AND HAS DECLINED TO PROVIDE THE OPINION IT SEEKS
HERE
Contrary to Petitioner's contention on page eight of the petition, the Florida
Supreme Court has considered whether servicing agents may verify foreclosure
complaints and have expressly rejected the argument. Specifically, Tampa-based
law firm Shapiro filed a motion for rehearing or clarification of the amendment to
Rule 1.110(b) on February 25, 2010. (Exhibit 2). Shapiro's motion provides, in
paragraph eight, that "[a]s currently drafted, there remains uncertainty as to
whether a mortgage foreclosure complaint must be verified by the current holder of
14
the note, the loan servicer, the attorney, or some combination of them to be in
compliance with the amended rule." (Emphasis added). On June 3, 2010, after
contemplating Shapiro's motion, the Supreme Court found it wanting and issued a
two-page order denying Shapiro's motion. (Exhibit 3).
Therefore, the Florida Supreme Court has contemplated the trial court's
order and has found it permissible. As a result, the petition should be denied.
V. PETITIONER'S DUE PROCESS ARGUMENT FAILS AS A
MATTER OF LAW
The petition generally asserts that Petitioner was denied "due process" by
the trial court's order. This argument fails as a matter of law, however, because
the trial court's order was not a retroactive application of Rule 1.110(b) and
because Petitioner was offered notice and an opportunity to be heard.
a. Applying the revised Rule 1.110(b) to amended complaints filed
after February 11,2010 is not a retroactive application of the Rule
Rather than citing any case law to support its contention that the trial court
impermissibly utilized retroactive application of Rule 1.11 O(b), Petitioner merely
refers in passing to Fla. R. Clv. P. 1.190(c), the so-called "relation-back rule."
However, a 1994 case from the Florida Supreme Court provides guidance as to
how this argument fails.
In Pearlstein v. King, 610 So. 2d 445 (Fla. 1994), the Supreme Court was
confronted with the question of whether the 120-day time limit for serving a
15
defendant after filing an initial complaint, as provided in Fla. R. Civ. P. 1.0700),
applies to complaints filed prior to January 1, 1989, the effective date of that rule.
The Court held that the 120-day limit applies and quashed the portion of a lower
court opinion holding otherwise. Id at 445. In so holding, the Pearlstein Court
reasoned that
[a]pplying the 120-day limit to causes of action pending on January 1,
1989 .. .is not a true retroactive application. In the instant case, a
retroactive application of the rule would require that King have served
the defendant within 120 days of filing his complaint on November 1,
1988. Instead, applying rule 1.0700) to causes of action pending on
its effective date would give plaintiffs 120 days from January 1, 1989
in which to serve their defendants. This prospective application puts
no extra burden on prior filings and does not diminish the time for
complying with the rule.
Id at 446.
It is uncontroverted that the effective date of the amendment to Rule
1.110(b) was February 11,2010. Therefore, a retroactive application of the rule
would have required Petitioner to verify the initial complaint that was filed in
2009. This was not what was done. Rather, the trial court merely required
Petitioner to verify the contents of the amended complaint which would have been
filed after February 11, 2010. This prospective application put no extra burden on
the prior pleading and did not diminish the time for compliance with the rule.
Therefore, Petitioner's argument, which cites no case law in support thereof,
should be summarily discarded and its petition denied.
16
b. Petitioner was afforded notice and the opportunity to be heard
In addition to the fact that the trial court's order was not a retroactive
application of Rule 1.11 O(b), Petitioner was afforded notice and the opportunity to
be heard at the hearing on Defendant's motion to dismiss, and therefore there was
no denial of its procedural due process rights. "Procedural due process serves as a
vehicle to ensure fair treatment through the proper administration of justice where
substantive rights are at issue." Department ofLaw Enforcement v. Real Property,
588 So. 2d 957, 960 (Fla. 1991). Indeed, Under the Florida Constitution,
procedural due process
guarantees to every citizen the right to have that course of legal
procedure which has been established in our judicial system for the
protection and enforcement of private rights. It contemplates that the
defendant shall be given fair notice[] and afforded a real
opportunity to be heard and defend[] in an orderly procedure, before
judgment is rendered against him.
ld. (Emphasis added). See also State ex reI. Gore v. Chillingworth, 126 Fla. 645,
657-58, 171 So. 649, 654 (1936) (citations omitted); accord, e.g., Fuentes v.
Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 1994,32 L.Ed.2d 556 (1972) (holding that
procedural due process under the fourteenth amendment of the United States
Constitution guarantees notice and an opportunity to be heard at a meaningful time
and in a meaningful manner).
17
Here, not only was Petitioner afforded notice and an opportunity to be heard,
Petitioner was the party who called the hearing on Defendant's motion.
Petitioner was represented by counsel at the hearing, who argued on its behalf, and
who was simply on the losing side of an argument. Petitioner was therefore not
denied procedural due process.
Because Petitioner was granted all due process rights as contemplated by the
Florida Constitution, its petitioner should be denied.
VI. THE TRIAL COURT CORRECTLY DISREGARDED
PETITIONER'S OBJECTION TO THE PROPOSED ORDER
BECAUSE THE OBJECTION DID NOT ESTABLISH FACT
Finally, the trial court was absolutely correct in "overruling" Petitioner's
objection to the proposed order because the objection was nothing more than a
series of unsworn allegations by Petitioner's counsel, not stipulated to by
Respondents' counsel, which the trial court could not use to establish fact. In
perhaps the subliminal case on an attorney's unsworn allegation, the Fourth
District had the following to say regarding the matter
[T]he practice we wish to see terminated is that of attorneys making
unsworn statements of fact at hearings which trial courts may consider
as establishing facts. It is essential that attorneys conduct themselves
as officers of the court; but their unsworn statements do not establish
facts in the absence of stipulation. Trial judges cannot rely on these
unsworn statements as the basis for making factual determinations;
and this court cannot so consider them on review of the record. If
the advocate wishes to establish a fact, he must provide sworn
testimony through witnesses other than himself or a stipulation to
which his opponent agrees.
18
Leon Shaffer Golnick Advertising v. Cedar, 423 So. 2d 1015, 1017 (Fla. 4th DCA
1982). (Emphasis added). Furthermore, the Cedar Court's holding has been
expressly endorsed by this Court. See Blimpie Cap. Venture v. Palms Plaza, 636
So. 2d 838, 840 (Fla. 2d DCA 1994). See also State v. Brugman, 588 So. 2d 279
(Fla. 2d DCA 1991) (holding that, in absence of stipulation, a trial court cannot
make a factual determination based on an attorney's unsworn statements).
Petitioner's objection filed with the lower court and attached as exhibit 11 to
its petition was not verified, not supported by affidavit, and not stipulated to by
Respondents' counsel. In addition, the objection fails to identifY the name of the
servicing agent or in any way authenticate the so-called power of attorney this
unnamed party has to execute documents in Petitioner's name. Therefore, the trial
court could not rely on Petitioner's counsel's unsworn allegations as the basis for
making a factual determination and this court cannot consider them on a review of
a record.
Therefore, because there is lack of any competent record evidence that
Petitioner does in fact have a servicing agent which is authorized to execute
documents in its name, the petition should be denied.
CONCLUSION
For the reasons and legal authorities set forth herein, it is respectfully submitted that
this Honorable Court should deny Petitioner's petition for writ ofcertiorari and direct it to
19
file a verified amended complaint in accordance with the trial com's November 8, 2011
order.

Dated February b ,2012.
Respectfully Submitted,
Matthew D. Weidner, P.A.
Counsel for Respondents
1229 Central Avenue
St. Petersburg, FL 33705
Telephone: (727) 894-3159
Facsimile: (727) 894-2953
Email: weidner@mattweidnerlaw.com

Michael P. Fuino, Esq.
Florida Bar No. 84191
kc
JallM Kral, Esq.
Florida Bar No. 67952
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished by
Regular U.S. Mail on this 6: of February, 2012 to: Sbaib Y. Rios, Esq.,
Counsel for Petitioner, Brock & Scott, PLLC, 1501 NW 49
th
Street, Ste. 200, Ft.
Lauderdale, Florida 33309.
20
CERTIFICATE OF COMPLIANCE
The undersigned certifies that this petition complies with the font
requirements set forth in Rule 9.210(a)(2), Fla. R. App. P.
21