Deutsche Bank National Trust Co. v. Prevratil
120 So. 3d 573
Fla. Dist. Ct. App.2013Background
- Deutsche Bank seeks certiorari review of a nonfinal order dismissing its foreclosure action against Burke and Nancy Prevratil and granting 60 days to amend.
- The trial court held that Deutsche Bank, not its loan servicer SPS, must verify the foreclosure complaint.
- SPS verified the complaint as Deutsche Bank’s attorney in fact on July 6, 2011 under Rule 1.110(b) and s. 92.525.
- Prevratils argued that verification by SPS violated Rule 1.110(b) because SPS was not the plaintiff and did not assert knowledge of the allegations; they cited In re Amendments to the Florida Rules of Civil Procedure.
- Deutsche Bank produced a February 22, 2011 power of attorney appointing SPS as attorney in fact for mortgage loans serviced by SPS; court dismissed but allowed amendment.
- The court considered whether a power of attorney can verify a foreclosure complaint; it held Deutsche Bank may rely on SPS under the durable power of attorney and Florida law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the verification by an attorney in fact complies with Rule 1.110(b). | Prevratil: SPS must verify; not the plaintiff; no personal knowledge. | Deutsche Bank: POA allows SPS to verify; verification need only state truth to best knowledge. | Yes; verification by SPS under a valid POA complies with Rule 1.110(b). |
| Whether the trial court’s verification requirement departed from the essential requirements of law. | Court imposed verifications beyond Rule 1.110(b) restricting Deutsche Bank improperly. | No improper departure; POA authority supports verification. | Yes; there was a departure by not giving effect to the POA verification. |
| Whether the error is noncorrectable on appeal and warrants certiorari relief. | Without proper verification, foreclosure cannot proceed; remedy limited if dismissed. | Potential postjudgment remedy exists if foreclosure proceeds. | Material injury not correctable on appeal; certiorari relief granted. |
Key Cases Cited
- In re Amendments to the Fla. Rules of Civil Procedure, 44 So.3d 555 (Fla.2010) (verifications required for mortgage foreclosure complaints; purpose to ensure accuracy)
- In re Amendments to the Fla. Rules of Civil Procedure-Form 1.996, 51 So.3d 1140 (Fla.2010) (Final Judgment of Foreclosure context; importance of verification)
- Trucap Grantor Trust 2010-1 v. Pelt, 84 So.3d 369 (Fla. 2d DCA 2012) (certiorari framework; three-part test; appellate relief)
- Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812 (Fla. 2d DCA 2004) (certiorari standard and corrective relief)
- Emp’rs Fire Ins. Co. v. Blanchard, 234 So.2d 381 (Fla. 2d DCA 1970) (appeal limitations on adverse orders)
- Gen. Motors Acceptance Corp. v. Davis, 664 So.2d 1025 (Fla. 2d DCA 1995) (remedies and reviewability of orders favorable to party)
- Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla. 2003) (definition of 'departure from essential requirements' and related standards)