JEREMY HUMMER, IN THE DISTRICT COURT OF APPEAL SECOND DISTRICT OF FLORIDA v. Petitioner, ALLY BANK, Case No. 2D15- LT Case No. 14-007656-CI Respondent. / PETITION FOR WRIT OF CERTIORARI Petitioner, JEREMY HUMMER ( Hummer ), by and through his undersigned counsel, petitions this Court for a Writ of Certiorari to quash a non-final Order Denying Defendant s Motion to Dismiss, and would show: OVERVIEW AND BASIS FOR JURISDICTION 1. In 2013, this Court granted certiorari relief in a mortgage foreclosure case where the lower court departed from the essential requirements of law vis a vis the verification requirements in Fla.R.Civ.P. 1.110(b). See Deutsche Bank Nat l Trust Co. v. Prevratil, 120 So. 3d 573 (Fla. 2d DCA 2013). The situation at bar merits certiorari relief for similar reasons. 2. Respondent, Ally Bank ( the Bank ), initiated the lower court proceeding by suing Hummer for mortgage foreclosure. Attempting to comply with the certification requirements of Fla. Stat. 702.015 (effective July 1, 2013, 1
requiring all residential foreclosure complaints contain a certification setting forth certain, specified information under penalty of perjury), the Bank filed a Certification of Possession of Original Promissory Note ( Certification ). 3. Believing the Certification to be defective, Hummer filed a Motion to Dismiss ( the Motion ), asserting the Certification was not set forth under penalty of perjury, as it lacked the information required by Fla. Stat. 92.525. The lower court denied the Motion, deeming the Certification sufficient and directing Hummer to file an Answer. 4. The issue set forth herein almost invariably escapes appellate review. 1 As a result, even though Fla. Stat. 702.015 has existed for nearly two years and applies in every residential foreclosure lawsuit in Florida filed after July 1, 2013 (literally, tens of thousands of lawsuits), there is no case law interpreting the requirements of the statute. There is, however, a plethora of case law showing the Certification at bar was not set forth under penalty of perjury. The lower court departed from the essential requirements of law by ruling otherwise, and there is no remedy on appeal. As such, this Court should, as it did in Prevratil, grant certiorari relief pursuant to Fla.R.App.Pro. 9.030(b)(2)(A). 1 As explained, infra, the overwhelming majority of mortgage foreclosure lawsuits result in an uncontested judgment, settlement, or dismissal, all three of which preclude post-judgment review vis a vis the requirements of Fla. Stat. 702.015. 2
FACTS AND PROCEDURAL HISTORY 5. On January 14, 2014 (long after July 1, 2013, the effective date of Fla. Stat. 702.015), the Bank initiated this lawsuit by suing Hummer for mortgage foreclosure. Appendix, 1. Contemporaneous with the Complaint, the Bank filed the Certification. It provides: 1. Pursuant to Florida Statutes, 702.015(4), under penalty of perjury, Gina L. Bulecza, an Attorney with the law office of Pendergast & Associates, P.C., gives this certification. 2. Pendergast & Associates, P.C., on behalf of Plaintiff, is in possession of the following original documents, hereinafter Original Documents: a. original promissory Note 3. A copy of each of the Original Documents is attached as Exhibit A. 4. At the time of verification, the Original Documents were located at Pendergast & Associates, P.C., 6675 Corporate Center Parkway, Suite 301, Jacksonville, FL 32216. 5. I personally verified Plaintiff s possession of the Original Documents on September 8, 2014 at 12:06 p.m. Appendix, 2. 2 Signature: [Gina L. Bulecza] Printed Name: Gina L. Bulecza Title: Florida Foreclosure Attorney Dated: September _8_, 2014 2 The Bank filed the Certification as an attachment to the Complaint, but Hummer includes it as a separate item in his Appendix hereto for ease of reference. 3
6. In response, Hummer filed his Motion to Dismiss ( the Motion ), arguing the Bank failed to comply with the requirements of Fla. Stat. 702.015. In particular, Hummer argued the Bank failed to file the Certification under penalty of perjury, as the statute requires. Appendix, 3. 7. Fla. Stat. 92.525 sets forth the (only) procedure by which a person can verify a document under penalty of perjury in Florida. It provides: (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 oaths; or (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. 8. Here, Hummer argued the Certification was not set forth under penalty of perjury, as Fla. Stat. 702.015 requires, because it was not notarized and did not comport with the alternative procedure in Fla. Stat. 92.525. In particular, the declaration contemplated by Fla. Stat. 92.525 was not set forth at the end of the Certification, did not indicate the content of the Certification was true, and did not 4
reflect the signer, Gina L. Bulecza ( Ms. Bulecza ) had even read the Certification. Appendix, 4. 9. Before Hummer addresses pertinent case law, that second defect merits a moment of reflection. The Bank asserted it signed under penalty of perjury where the Certification did not even indicate the content thereof was true! Appendix, 4. 10. At the hearing on the Motion, Hummer argued the Certification was not set forth under penalty of perjury for these reasons. In support, Hummer cited the requirements of Fla. Stat. 92.525 and noted the absence of any legal authorities otherwise from the Bank. Appendix, 4. Nonetheless, the lower court denied the Motion, deemed the Certification sufficient, and directed Hummer to file an Answer. Appendix, 5. 11. For the reasons set forth herein, that Order is a departure from the essential requirements of law for which there is no adequate remedy on appeal. This Court should grant certiorari. ARGUMENT: DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF LAW 12. Fla. Stat. 702.015 provides, in pertinent part: If the plaintiff is in possession of the original promissory note, the plaintiff must file under penalty of perjury a certification with the court, contemporaneously with the filing of the complaint for foreclosure, that the plaintiff is in possession of the original promissory note. 5
(Italics added). 3 13. Under the most basic principles of statutory construction, Florida courts must give meaning to each provision of the statute. See State v. Goode, 830 So. 2d 817, 824 (Fla. 2002) ( A basic rule of statutory construction provides that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless. ); Fla. Dept. of Revenue v. Fla. Municipal Power Agency, 789 So. 2d 320, 324 (Fla. 2001) ( A court's function is to interpret statutes as they are written and give effect to each word in the statute. ); Smith v. Piezo Tech. and Prof. Administrators, 427 So. 2d 182, 184 (Fla. 1983) ( It must be assumed that a provision enacted by the legislature is intended to have some useful purpose ). 14. Here, the (only) way to give effect to the requirement in Fla. Stat. 702.015 that the Certification be set forth under penalty of perjury was to require the Bank: (i) sign the Certification under oath, before a notary; or (ii) comply with the alternative verification procedure in Fla. Stat. 92.525. There is, quite simply, no other way to sign a document under penalty of perjury in Florida. See Fla. Stat. 92.525. 15. Given its July 1, 2013 implementation and the pragmatic problems 3 Hummer is not challenging the Bank s compliance with the other terms of the statute. 6
which prevent appellate review, see Argument, infra, there is no case law construing the requirements of Fla. Stat. 702.015. That said, Florida courts have often been confronted with the question of whether a declaration under Fla. Stat. 92.525 was sufficient to put the signer under penalty of perjury. These cases have invariably fallen into one of two lines of cases. 16. In the first line of cases, Florida courts have consistently held a declaration under Fla. Stat. 92.525 was made under penalty of perjury, despite the absence of a notary, where the bottom of the document contained a signature and an unequivocal indication that its contents were true. State v. Shearer, 628 So. 2d 1102, 1103 (Fla. 1993) (motion for postconviction relief under Fla.R.Crim.Pro. 3.850 was set forth under oath where it ended with the heading OATH F.S. 92.525, followed by under penalties of perjury, I declare that I have read the foregoing and the facts stated in it are true ); Campbell v. State, 115 So. 3d 434 (Fla. 2d DCA 2013) (postconviction motion was properly set forth under oath where it was virtually identical to the language in Fla. Stat. 92.525); J.S.L. Constr. Co. v. Levy, 994 So. 2d 394, 399 (Fla. 3d DCA 2008) (statement was under oath where signed by corporation s president under penalties of perjury, I declare that I have read the foregoing declaration including the attached Exhibit A, containing 5 pages, and that the facts stated in these pages are true. ); Theoc v. State, 832 So. 2d 261, 262 (Fla. 3d DCA 2002) (postconviction motion properly sworn where at the 7
end of the Rule 3.850 motion, the defendant executed the Unnotarized Oath set forth in Florida Rule of Criminal Procedure 3.987, stating Under penalties of perjury, I declare that I have read the foregoing Motion for Post Conviction Relief and that the facts stated in it are true. ); Goines v. State, 691 So. 2d 593 (Fla. 1st DCA 1997) (affidavit was set forth under oath where it contained the following statement: Under penalties of perjury, I declare that I have read the foregoing affidavit and that the facts stated in it are true ). 17. Perhaps the most illustrative decision in this line of cases is this Court s 2004 decision in Martinez v. Abraham Chevrolet-Tampa, Inc., 891 So. 2d 579, 580 (Fla. 2d DCA 2004). There, the issue before this Court was whether an individual signed under penalty of perjury where she signed the bottom of a form with the following statement: I declare under penalty of perjury that the foregoing is true and correct. Id. at 580. Writing for a unanimous panel, Judge Altenbernd explained why such a declaration did put the signer under penalty of perjury : [S]ection 92.525(4)(c) explains that the requirement that a document be verified means that the document must be signed or executed by a person and that the person must state under oath or affirm that the facts or matters stated or recited in the document are true, or words of that import or effect. The words that Ms. Martinez signed under penalty of perjury are words of that import or effect. See Fla Bar v. Bernell, 721 So. 2d 705, 707 (Fla. 1998) (holding signature on Bar complaint form below statement, Under penalty of perjury, I declare the foregoing facts are true and correct and complete, was sufficient to meet verification requirements and subject signer to perjury under section 92.525. 8
Id. at 582. In so ruling, this Court was willing to overlook the fact that the declaration was not set forth exactly as it is in Fla. Stat. 92.525 ( words of that import or effect ) where the document bore a signature at the bottom and reflected, under penalty of perjury, the contents of the document were true. Id. 18. By contrast, a second line of cases has found declarations under Fla. Stat. 92.525 to be insufficient where they lacked an unequivocal statement that the facts set forth therein were true. For instance, in Muss v. Lennar Florida Partners I, L.P., a foreclosure defendant did not declare the facts in his answer were true, only that they were true to the best of his knowledge and belief. 673 So. 2d 84, 85 (Fla. 4th DCA 1996). The Fourth District found that verification insufficient as a matter of law, explaining: Appellant filed a verified answer, affirmative defenses, and a counterclaim. However, rather than stating under oath that the facts contained therein were true, Appellant swore only that the facts were true to the best of his knowledge and belief. [S]ection 92.525(2) authorizes verification solely on information and belief only where permitted by law. See State, Dept. of Highway Safety & Motor Vehicles v. Padilla, 629 So. 2d 180 (Fla. 3d DCA 1993) Reviewing section 702.10 in light of the requirements in section 92.525, we find no basis for permitting verification under section 702.10 to be made solely on information and belief. As such, Appellant s verified answer was insufficient to preclude entry of a final judgment of foreclosure as provided for in sections 702.10(1)(b) and (1)(c). 673 So. 2d at 84. 19. The holding and rationale of Muss mirrors a 1985 decision from the 9
Florida Supreme Court. In Scott v. State, a criminal defendant signed a postconviction motion reflecting the facts were true and correct to the best of his knowledge. 464 So. 2d 1171, 1172 (Fla. 1985). The Court held this verification insufficient to subject that defendant to the penalties of perjury, explaining: The trial court correctly held that Scott s verification was not an oath as contemplated by rule 3.850 because of the qualifying language contained therein. Using this qualifying language, a defendant could file a motion for post-conviction relief based upon a false allegation of fact without fear of conviction for perjury. If the allegation proved to be false, the defendant would be able to simply respond that his verification of the false allegation has been to the best of his knowledge and that he did not know that the allegation was false. We require more than that. Id; see also Hall v. Byington, 421 So. 2d 817 (Fla. 4th DCA 1982) ( The trial judge mistakenly believed the motion to be sworn, but on close examination of the lawyer s oath, one sees the allegations were true and correct to the best of his knowledge and belief. Such a statement was insufficient because it is qualified, not positive. ). 4 20. The facts at bar are plainly more like the second set of cases than the first. Here, the language prescribed by Fla. Stat. 92.525 was not set forth at the 4 The cases construing the verification requirement of Fla.R.Civ.P. 1.110(b), see e.g. Wells Fargo Bank, N.A. v. Taboada, 93 So. 3d 1073 (Fla. 2d DCA 2012), plainly do not apply. That is a completely different rule, one which specifically authorizes a knowledge and belief verification. See id. Here, nothing in Fla. Stat. 702.015 authorized an equivocal declaration of this type, so under the plain language of Fla. Stat. 92.525, even an equivocal verification would not have been permitted. 10
bottom of the Certification, as in Shearer, Campbell, Levy, Theoc, Goines, and Martinez, but is imbedded within the first paragraph of the Certification. Despite hours of research, the undersigned has found no Florida decision which authorizes one to sign under penalty of perjury in this manner. It seems clear no such case exists. 21. Even more troubling, the Certification at bar does not subject the Bank to the penalty of perjury because, unlike the declarations found to be sufficient in Shearer, Campbell, Levy, Theoc, Goines, and Martinez, it does not reflect the content thereof is true. In fact, the Certification at bar is even worse than those found to be defective in Muss, Scott, and Hall. After all, in those three cases, the signer at least indicated the facts in those documents were true (albeit to the best of his knowledge ). Muss, 673 So. 2d at 84; Scott, 464 So. 2d at 1172; Hall, 421 So. 2d at 817. Here, the Certification does not even reflect that much, as there is no indication whatsoever that the facts in the Certification are true. 22. With respect to the lower court, can there be a more fundamental aspect of signing under penalty of perjury than attesting the contents of that document are true? Plainly not. That is why, despite many hours of research, the undersigned has found no Florida decision which authorizes one to sign under penalty of perjury, without a notary, where the declaration does not even reflect the statements in the document are true. See Fla. Stat. 92.525. The absence of such a case is 11
telling. Undoubtedly, if an equivocal declaration that the facts are true (e.g. true to the best of my knowledge ) is insufficient to subject one to the penalty of perjury, then the complete absence of such declaration is obviously insufficient. 23. Though there is no case law construing Fla. Stat. 702.015, the Florida Supreme Court just recently enacted Fla.R.Civ.P. Form 1.944(a). See In re. Amendments to Florida Rules of Civil Procedure, 153 So. 3d 258 (Fla. Dec. 11, 2014). That Form requires certifications under Fla. Stat. 702.015 contain the language set forth in Fla. Stat. 92.525 at the bottom of the form, directly above the signature, including a declaration that the signer had read the certification and that the facts set forth therein were true. 5 See id. Specifically, the Form requires the 5 In its entirety, the Florida Supreme Court-approved form for certifications in residential foreclosure cases reads as follows: CERTIFICATION OF POSSESSION OF ORIGINAL NOTE The undersigned hereby certifies: 1. That plaintiff is in possession of the original promissory note upon which this action is brought. 2. The location of the original promissory note is:. (location). 3. The name and title of the person giving the certification is. (name and title). 4. The name of the person who personally verified such possession is:. (name). 5. The time and date on which possession was verified were:. (time and date). 6. Correct copies of the note (and, if applicable, all endorsements, transfers, allonges, or assignments of the note) are attached to this certification. 7. I gives this statement based on my personal knowledge. Under penalties of perjury, I declare that I have read the foregoing Certification of Possession of Original Note and that the facts stated in it are true. 12
Bank s Certification reflect: Under penalties of perjury, I declare that I have read the foregoing Certification of Possession of Original Note and that the facts stated in it are true. Id. This Court s precedent does not require that exact language, see Martinez, 891 So. 2d at 582 ( words to that import or effect ), but it plainly requires an unequivocal assertion the facts are true. See Muss, Scott, and Hall, supra. 24. Florida courts must give meaning to all statutory provisions. See Goode, Agency, and Smith, supra. Where Fla. Stat. 702.015 requires a certification signed under penalty of perjury, the lower court departed from the essential requirements of law by allowing a certification without that element. Compare Shearer, Campbell, Levy, Theoc, Goines, and Martinez, supra, with Muss, Scott, and Hall, supra. Established precedent lends to no other conclusion. 25. In light hereof, this Court should quash the Order at bar and remand with instructions to dismiss the complaint without prejudice. Alternatively, this Court should remand with instructions that the Bank file an amended certification contemporaneous with an amended complaint. 6 Executed on. (date). (boldface and underline in original, italics added). 6 The sanctions authorized by section 6 of the statute are not enumerated. See Fla. Stat. 702.015(6). As such, one could argue the proper remedy is dismissal without prejudice to filing a new lawsuit or dismissal without prejudice but with 13
ARGUMENT: NO REMEDY ON APPEAL 26. This Court might agree with the argument set forth above but may be hesitant to conclude it justifies certiorari. Admittedly, the denial of a motion to dismiss may sound like an unusual basis for certiorari relief. Before this Court denies relief on that basis, it should look closely at its own decision in Prevratil, supra, and think about the pragmatics of the situation at bar. 27. It is axiomatic that an order denying a motion to dismiss is not reviewable on appeal until the conclusion of a case. Hence, absent certiorari relief, Hummer can only appeal if a final judgment of foreclosure is entered against him. At first blush, it may seem such a remedy is available to Hummer he should just appeal at the end of the case. Closer analysis shows any such knee-jerk response would be misguided. 28. The Florida Supreme Court s 2012/13 Foreclosure Backlog Reduction Initiative, July through October 2012 Status Report, reflects there were 38,349 final judgments of foreclosure entered by Florida judges from July through October, 2012. During this same time period, there were 30,130 foreclosure cases dismissed. Yes, there were nearly as many dismissals as there were foreclosures. In the Sixth Judicial Circuit (the circuit from which this petition emanates), there were 2,685 leave to amend. Either way, merely filing an amended certification would be insufficient because the statute requires the certification be filed contemporaneously with the complaint. 14
judgments entered and 2,420 dismissals a nearly one-to-one ratio! Hence, judging just from those numbers, Hummer is as likely to win the case (and be unable to appeal) as he is to lose. See Exhibit A hereto. 29. Significantly, these figures are derived from all foreclosure cases in Florida, not just contested cases. Undoubtedly, the percentage of cases dismissed is much greater when the case is contested (i.e. where the homeowner retains counsel), as here, as opposed to when the homeowner does not. While the undersigned acknowledges the absence of a record cite for such a proposition, it seems axiomatic that a dismissal is far more likely when a homeowner has retained counsel and is asserting defenses than when the homeowner does not retain counsel and the lender can prosecute the case without opposition. 30. As an example to illustrate the point, the undersigned has litigated many thousands of foreclosure lawsuits throughout Florida since 2008. While the undersigned does not have exact figures, he would estimate the number of cases he has litigated which resulted in a final judgment of foreclosure outside the confines of a settlement agreement to be under 100. Yes, out of many thousands of cases, fewer than 100 resulted in a final judgment outside the confines of a settlement. By contrast, thousands of cases have ended via settlement, and over 800 others ended via an outright dismissal, i.e. dismissal without leave to amend. 31. Judging from these numbers, it is exceptionally unlikely that Hummer 15
will be able to appeal the Order at bar post-judgment, as this case is overwhelmingly likely to end either via dismissal or settlement. Hence, the Order denying Hummer s motion to dismiss is a material injury not correctable on appeal. 32. If that argument (admittedly containing non-record cites) sounds farfetched, this Court should take a close look at its own decision in Prevratil. There, this Court granted a foreclosing lender s petition for writ of certiorari because, absent such relief, that lender could have obtained a final judgment and been unable to appeal post-judgment. 7 In this Court s words: 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). 120 So. 3d at 575. 33. Reading between the lines of Prevratil, this Court undoubtedly realized 7 This Court s initial decision in Prevratil indicated the lender was likely to obtain a final judgment. After the undersigned filed a motion for rehearing as an amicus challenging this specific point, this Court revised its decision to reflect certiorari relief was justified because the lender could have obtained a final judgment. That standard that a foreclosure litigant could be unable to appeal post-judgment because he/she could win the case is now established precedent before this Court in this context. Under that standard, Hummer certainly could prevail below, particularly with the undersigned as counsel. Certiorari is proper. 16
the need for a published decision interpreting the verification requirement of Fla.R.Civ.P. 1.110(b) (since, at the time, no such appellate case law existed). Here, the situation is no different. Florida s trial courts need controlling case law setting forth the certification requirements of Fla. Stat. 702.015, as none exists. As this issue is likely to continue escaping post-judgment review, certiorari relief is appropriately granted. 34. Before concluding, the undersigned would be remiss not to note a potential pragmatic concern. Yes, this is a foreclosure case. And yes, given the volume of foreclosure cases pending in Florida courts, this Court may be hesitant to create law that inures to the benefit of homeowners who have not been paying their mortgage. Any such equitable concerns, however, cannot carry the day. After all, the legislature was well aware of these issues when it created Fla. Stat. 702.015, yet it did so anyway, requiring foreclosing lenders sign a certification under penalty of perjury in every residential mortgage foreclosure case. This Court should not rule otherwise and legislate from the bench. Additionally, where a statute contains clear, specific terms, equitable considerations not set forth in the statute have no part in the legal analysis. See e.g. Midtown Enters., Inc. v. Local Contractors, Inc., 750 So. 2d 683 (Fla. 3d DCA 2000). CONCLUSION 35. In light of the foregoing, this Court should grant certiorari, quash the 17
Order Denying Motion to Dismiss Complaint, and instruct the lower tribunal to enter an order dismissing the Complaint given the Bank s failure to comply with the certification requirements of Fla. Stat. 702.015. As the statute requires the certification be filed contemporaneously with the Complaint, this dismissal should be done without prejudice to the Bank filing a new lawsuit or, alternatively, without prejudice to the Bank filing an Amended Complaint. 8 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via electronic mail to Choice Legal Group, P.A., attorneys for Respondent, eservice@clegalgroup.com, and Hon. Jack Day, 545 First Ave. N., Room 200, St. Petersburg, FL 33701 on this 9th day of March, 2015. Mark P. Stopa, Esquire FBN: 550507 STOPA LAW FIRM 2202 N. Westshore Blvd., Suite 200 Tampa, FL 33607 Telephone: (727) 851-9551 foreclosurepleadings@stopalawfirm.com ATTORNEY FOR PETITIONER CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that the instant Petition complies with the font requirements of Fla.R.App.P. 9.100(l). Mark P. Stopa, Esquire 8 Fla. Stat. 702.015(6) does not set forth the specific sanctions to be imposed for failure to comply with the statutory terms. Hence, it seems whether to dismiss with or without leave to amend is a matter of the judicial discretion. 18