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IN THE SUPREME COURT OF FLORIDA

No. SC 13-2384

IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL

PROCEDURE

Proposed Rule 1.115

COMMENTS FILED ON BEHALF OF

THE FLORIDA BANKERS ASSOCIATION

The Florida Bankers Association appreciates the opportunity to comment on

banks and financial institutions ranging in size from small community banks and

thrifts, to medium sized banks operating in several parts of the state, to large

regional financial institutions that are headquartered in Florida or outside the

state. The FBA regularly represents the interests of its members before all

branches of the government and frequently appears as amicus curiae in the state

Filing # 23174793 E-Filed 01/30/2015 10:52:39 AM

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and federal courts, including this Court, in order to present the interests of its

membership on issues of great import.

Scope of Comment

(e) Verification. When filing an action for foreclosure on a mortgage

[Emphasis in body of proposed rule subsection added.] "Claimant," as that term is

used in subsection (b) of the proposed rule, refers to the plaintiff in the foreclosure

action, whether the plaintiff is the holder of the note and holder of the mortgage or

the person to whom the holder of the note and mortgage has delegated authority to

enforce the note. Logically, the reference to "claimant" in subsection (e) would

have the same meaning.

Although some lending institutions in the FBA retain andservice their own

portfolio of mortgage loans, the vast majority of such loans made in Florida are

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securitized and held in an investor entity for the benefit of its members,

shareholders or beneficiaries. Those portfolios of loans are serviced by, but not

owned or held by, a third party servicer.

plaintiff in a mortgage foreclosure action, even though it is not the holder of the

note and mortgage, so long as the ability to bring the foreclosure action has been

properly delegated

Frequently, the investor requires the servicer to file the foreclosure in the

investor's name for various reasons. For example, when the suit is brought in the

investor's name, only the investor's entitlement to sue is subject to proof. The court

need not consider the standing or authority of the servicer. This reduces the

number of issues in litigation, thus saving judicial time and effort. Moreover,

investors transfer servicing rights to new servicers for various reasons. If the

replaced servicer is named as the plaintiff, a motion to substitute party plaintiff

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may be required, opening a new round of inquiry into delegated authority or

standing. This, too, burdens judicial time and attention and slows the foreclosure

process. Equally important, in a successful foreclosure, naming the investor as the

actions on behalf of the servicers. However, the reference—and the exclusive

reference—to "claimant" in subsection (e) creates confusion as to existing law and

the authority of a servicer prosecuting a foreclosure action in the name of the real

party in interest to verify the foreclosure complaint. The authority of a servicer to

verify foreclosure complaints on behalf of the holder of the note and mortgage has

been well recognized in this state.

Florida Rule of Civil Procedure 1.110, which is amended and in part

replaced by the creation and adoption of Rule 1.115, required verification without

specifying the relationship between the verifying entity and the plaintiff. Courts

recognized that a servicer prosecuting a foreclosure action in the name of the real

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governing rule See, e.g., Deutsche Bank v. Plageman, 133 So. 3d 1199, 1202 (Fla.

2d DCA 2014); Deutsche Bank Nat'l Trust Co. v. Prevratil, 120 So. 3d 573, 576-77

(Fla. 2d DCA 2013) (a power of attorney provides sufficient support for the

not to modify law regarding standing or real parties in interest." [Emphasis

added.] The language requiring verification by the "claimant" may be argued by

defendants and interpreted by trial courts as receding from theholdings in the cases

cited above. There is no benefit to defendants or to the courts to limit the power to

verify a complaint in foreclosure to the named party plaintiff. On the other hand,

that limitation ignores existing law and practice and creates an obstacle to the

orderly and efficient prosecution of foreclosures by servicers on behalf of

investors.

Florida Bankers Association's Request for Clarification

Because this ambiguity will potentially result in additional litigation in

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bound by the verification of its authorized agent, the F BA respectfully requests

specifically annotate subsection (e) of the rule to note that the requirement that a

foreclosure complaint be verified by the foreclosure claimant is not intended to

satisfied if the complaint is verified on behalf of the claimant by someone with

appropriate knowledge of the allegations of the complaint, such as an authorized

loan servicer, agent, or attorney-in-fact.

Respectfully submitted,

Florida Bankers Association, Inc.

1001 Thomasville Road, Suite 201

Tallahassee, FL 32303

by:

Virginia B. Townes, Esq.

Florida Bar Number: 361879

AKERMAN LLP

Post Office Box 231

Phone: (407) 423-4000

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Fax: (407) 843-6610

Email: virginia.townes@akerman.com

Its General Counsel

/s/ Virginia B. Townes

Florida Bar Number: 361879