09/18/10 Carol C Asbury, Esquire

FAILURE TO VERIFY THE COMPLAINT RULE CHANGE TO RULE 1.110 EFFECTIVE DATE BY THE FLORIDA SUPREME COURT IS FEBRUARY 11, 2010 On February 11, 2010, the Florida Supreme Court Amended Rule 1.110(b) as well as Form 1.996(Final Judgment of Foreclosure Form). The Amended rule 1.110(b) was amended to require verification of mortgage foreclosure complaints involving residential real property. The primary purpose of the Rule change was as follows: (1) To provided incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded “lost note” counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from sujits brought by plaintiffs not entitled to enforce the note; (4) to give trial courts greater authority to sanction plaintiffs who make false allegations.

EFFECTIVE DATE: “The amendments shall become effective immediately upon the release of this opinion.”
Exception to this Effective Date is the Amendments to Form 1.996(a)(Final Judgment of Foreclosure Form): “Because the amendments to form 1.996(a) (Final Judgment of Foreclosure) were not published by the Court for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments, on those amendments ONLY, with the Court.

AUTHORITY TO PROMULGATE RULES OF PROCEDURE:
The Florida Constitution, in Article V, Section 2(a), expressly reposes in the Florida Supreme Court the power and responsibility to “adopt rules for the practice and procedure in all courts.” The is the exclusive right of the Supreme Court; thus, the membership of each house of the legislature may repeal a rule governing practice and procedure promulgated by the FSC but may not edit. Florida Statute Section 25.371 correspondingly provides that any such rule supersedes any statutory provision with which it may conflict. Florida Rule of Judicial Administration, Rule 2.140 sets forth the procedure for amending the rules, applicable to all courts rules.

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09/18/10 Carol C Asbury, Esquire

RULE 2.140, FLORIDA RULE OF JUDICIAL ADMINISTRATION AMENDING RULES OF COURT:
Rule 2.140, Fla.R.JudicialAdmin, Amending Rules of Court sets forth the procedures for amending the Rules of Civil Procedure – as well as all other court rules. Generally, i.e. with the exception of emergency situations covered in subdivisions (d) and (e) and special requests of the Supreme Court under subdivision (f) of Rule 2.140, the Civil Procedure Rules are amended by the Supreme Court upon proposals submitted by the Civil Procedure Rules Committee once very three years. VERY IMPORTANT POINT: THE AMENDMENT to RULE 1.110(b) REQUIRING VERIFICATION of the Complaint was adopted using RULE 2.140(d), EMERGENCY AMENDMENTS BY COURT because the amendment to the Florida Rule of Civil Procedure 1.110(General Rules of Pleading) and the two new Forms for Use with Rules of Civil Procedure (amending Form 1.996) were proposed by the Task Force on Residential Mortgage Foreclosure Cases and not via the standard three-year cycle package of proposals following the procedures set forth in Rule 2.140(b)(1)-(7). So in determining the effective date of the amendments to the Civil Procedural Rule, the procedures and dictates of Rule 2.140(d), Emergency Amendments by Court, control.

RULE 2.140(d) EMERGENCY AMENDMENTS BY COURT
The FSC specifically Ordered that the Amendment to Rule 1.110(b), which required the verification of the Complaint, AND Form 1.996 was effective on February 11, 2010. (“The amendments shall become effective immediately upon the release of this opinion.). The Opinion is dated Feb. 11. 2010. With one caveat, The FSC gave 60 days from February 11, 2010 for “interested persons” to file comments to the amendments to Form 1.996(a) – “on those amendments only” – because the amendment to those Forms were not published prior to the adoption by the FSC. But the amendment to Rule 1.110 was published before its adoption by the FSC – so no comments were required. Thus, Form 1.996 was subject to the considerations of comments filed within 60 days – but the EFFECTIVE DATE DID NOT CHANGE. Its still Feb 11, 2010. RULE 2.140(D) ALLOWS THE FLORIDA SUPREME COURT TO “MAKE CHANGES TO THE RULES AT ANY TIME IF AN EMERGENCY EXISTS THAT DOES NOT PERMIT REFERENCE TO THE APPROPRIATE COMMITTEE OF THE FLORIDA BAR FOR RECOMMENDATIONS.” Rule 2.140(d) states that a Rule change under this provision of the Judicial Administration Rules “may become effective immediately or at a future time” but because the Rule was amended without reference to the appropriate committee of The Florida Bar, The Florida Supreme Court “must fix a date for further consideration of the change.” BUT THE EFFECTIVE DATE DOES NOT CHANGE.

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09/18/10 Carol C Asbury, Esquire

Rule 2.140(d) states, in its pertinent part: “Any person may file comments concerning the change, seeking its abrogation or a delay in the effective date...” Following this Rule, the FSC gave 60 days for the filing of comments RE: the change, abrogating the change or delaying the effective date. No one moved the Court to Delay the Effective Date of the Amendment on Verification of the Complaint. SHAPIRO & FISHMAN'S MOTION FOR REHEARING: Shapiro & Fishman's Motion for Rehearing or Clarification RE: the Amendments to the Florida Rules of Procedure, Rule 1.110, and Form 1.996, although not authorized, could be considered a “comment” authorized by the FSC's Order. However, Shapiro & Fishman's Motion for Rehearing did not seek to DELAY THE EFFECTIVE DATE of FEBRUARY 11, 2010. Shapiro & Fishman merely requested the FSC to clarify the amendment to set forth “who is responsible for verifying the mortgage foreclosure complaint” because to Shapiro & Fishman's knowledge (1) the Holder of the note may not have personal knowledge as to payments on the Note or if a default notice was mailed; (2) loan servicer could verify payments on the Note but not any other factual allegations; and (3) the current Note Holder does not have knowledge of what transpired prior to its acquiring possession of the Note since “notes are frequently assigned between lenders and other investors.” Also, Shapiro & Fishman requested that the FSC clarify whether “an attorney or law firm” could verify the complaint. In short, Shapiro & Fishman's motion for rehearing did NOT seek to abrogate the requirement for verification or DELAY THE EFFECTIVE DATE OF THE AMENDMENT. It sought merely to clarify WHO was required to verify the complaint.

THE EFFECTIVE DATE REMAINS FEBRUARY 11, 2010.
The Florida Supreme Court's Order still bears the date of February 11, 2010. The Order may not have become final until after the 60 days for filing comments expired on the Amendment to Form 1.996 and said comments were considered by the FSC, but the effective date of the Amended Rule 1.110(b) still remains as listed on the Order – February 11, 2010.
In short, Rule 2.140(d) allows for the effective date of an amendment to a procedural Rule to “become effective immediately” but the Order itself to become final after the FSC receives “comments concerning the change, seeking its abrogation, or a delay in the effective date” which the FSC sets at some point in the future “for further consideration of the change.” So the Rule change becomes effective immediately but the Order is not final until after the FSC “fix[es] a date for further consideration of the change”, which comments may include abrogating the amendment to the Rules or comments merely seeking “a DELAY in the effective date.” Even if one were to argue that the FSC Order gave 60 days for filing a comment on the Verification of the Complaint – which it did not – IN THE INSTANT CASE, No comment or motion filed with the FSC sought to delay the effective date of the Order amending Rule 1.110(b), requiring the verification of the foreclosure complaint. Again the key here is that the Rule change Ordered by the FSC was done under Rule 2.140(d) of the Florida Rules of Judicial Administration..... and not under 2.140(b)(1)-(7). So Rule 2.140(d) controls. The FSC's Order still reads, February 11, 2010, even after considering the comments and/or Shapiro & Fishman's Motion for Rehearing. So when the FSC states: The amendments shall become effective immediately upon the release of this opinion." The only date set forth in the Order that references the release date of this Order is February 11, 2010. If you go to the FSC site it also lists the release date as February 11, 2010. Thus, the effective date as set forth in the Order is February 11, 2010.

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09/18/10 Carol C Asbury, Esquire

CAVEAT: NO RIGHT OF REHEARING IS PROVIDED IN RULE 2.140 RELATED TO AMENDING RULES OF COURT:
Rule 2.140(b)(1)-(7) sets for the standard procedure to be followed for consideration by the FSC of any rule amendments. Rule 2.140(b)(7) requires the FSC to render an ORDER setting forth the rule change and the effective date of said rule change. The Order MAY permit motions for rehearing to be filed (1) on behalf of Any person, (2) The Florida Bar, (3) any bar association, and (4) and the affected committee. Two points need to be made. FIRST: Rule 2.140(b)(7) does not mandate a rehearing on a rule change Ordered by the FSC after the proper procedure as been followed as set forth in Rule 2.140(b) (1)-(7). Rule 2.140(b)(7) specifically states that the FSC “MAY” permit motions for rehearing – not “shall” permits motions for rehearing. So, whether or not the FSC permits a rehearing on an Order amending the rules and procedures – whether that Order effects the (a) Rules of Civil Procedure, (b) Rules of Family Law, Rules of Criminal Procedure, Rules of Probate, Rules of Traffic Court, Rules of Small Claims, Rules of Juvenile Procedure, or Rules of Juvenile Procedure – is clearly within the sound discretion of the Florida Supreme Court – which cannot be overturned by a Circuit Court Judge. SECOND: Rule 2.140(b)(7) DOES NOT allow the FSC to permit motions for rehearing TO BE FILED by individual attorneys or law firms, who may object to the the new amended rule. Thus, Shapiro & Fishman, LLP's Motion for Rehearing does not fall within the specifically enumerated parties for which the FSC “may permit motions for rehearing” on Orders effectuating a change in Rule 1.110(b). (i.e. it did not file the rehearing on behalf of any person nor is it The Florida Bar, a bar association or an affected committee.).

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09/18/10 Carol C Asbury, Esquire

BRIEF TALKING POINTS: Effective Date of Rule Change Requiring Verification of Complaint
1. Florida Constitution, in Article V, Section 2, expressly gives the Florida Supreme Court the power and responsibility to “adopt rules for the practice and procedure in all courts.” Florida Rule of Judicial Administration, Rule 2.140 sets forth the procedure for amending the rules applicable to all court rules: Civil Procedure, Probate, Appellate Procedure, Family Law, Traffic Court, Juvenile Procedure, Small Claims Rules. Generally the Civil Rules of Procedure are amended by the FSC upon proposals submitted by the Civil Procedure Rules committee once every 3 years using the procedures set forth in Rule 2.140(b)(1)-(7) of the Rules of Judicial Administration. In the instant case, the Task Force on Residential Mortgage Foreclosure Cases proposed the amendment to the Florida Rule of Civil Procedure, 1.110(b), requiring verification of the mortgage foreclosure complaint, and two new forms for Use with the Rules of Civil Procedure. Thus, the procedures set forth in Rule 2.140(d), Fla. Rules of Judicial Administration, RE.: Emergency Amendments by Court, were utilized by the FSC in amending Rule 1.110 RE. The Verification of the Complaint. Consequently, the determination of the effective date of the Rule change to Rule 1.110(b), requiring the verification of foreclosure complaints, is governed and controlled by the procedure set forth in Rule 2.140(d). (not Rule 2.140(b)(1)-(7))

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6. Rule 2.140(d) allows the FSC to amend the Rules of Civil Procedure on an emergency basis and to Make those
Rule Changes “effective immediately or at a future time.” In this case the FSC made the Verification of Complaints (change in Rule 1.110) EFFECTIVE IMMEDIATELY UPON RELEASE OF THIS OPINION. The date of release is Feb. 11, 2010 – which has never changed. The Effective Date is related to the “RELEASE” date of the Opinion. (the “not final until time expires to file rehearing” language in the Opinion relates to the Opinion but not the “Release Date”/Effective date for the amendments).

7. Rule 2.140(d) also requires the FSC to “fix a date for further consideration of the change” and to allow interested
persons to file comments concerning the change, seeking its abrogation or a delay in the effective date. But nothing in the rule says that the effective date of the procedural rule change is altered due to the fact that the FSC set a date in the future for receiving comments “for further consideration of the change” -- otherwise the provision in the Rule allowing for the rule change to become effective immediately would be meaningless. 8. The Date the Opinion was Releases is February 11, 2010. Even after the time given to file comments past, the FSC did not change the date of release on the Opinion. The only date on the Opinion adopting the Rule Change to the Civil Procedure Rule 1.110(b), verification of the complaint, remains February 11, 2010. Thus, February 11, 2010 is the effective date of the Rule Change. No motion or comment was filed with the FSC requesting that the Effective Date of February 11, 2010 be delayed.

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10. Rule 2.140(d) allows the Amended Civil Procedural Rule to be Effective Immediately even though the Order may not become final until after the time set for the submission of “comments” to the rule change are considered by the FSC. 11. Nevertheless, the FSC only authorized submission of comments related to the changes in Forms. 1.996. The FSC did not authorize the submission of comments related to the Verification of the Complaint. 12. Shapiro & Fishman's Motion for rehearing was not sanctioned by the FSC Order. Nevertheless, the Rehearing Motion ALSO did not request that the effective date of the rule change requiring verification of the complaint be delayed. Therefore, the Effective Date of the the Rule Change remains February 11, 2010.

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09/18/10 Carol C Asbury, Esquire

Discussion with Paralegal: Nevertheless, As stated the Effective date of the rule change and the Finality of the Opinion seem to be two different things under Rule 2.140(d). This Rule allows for the FSC to make emergency changes to the rules which are clearly effective immediately. But if this rule change is made "without reference to the committee" then the FSC must provide a date in the future whereby comments can be submitted for further consideration by the FSC. These comments could be related to the request for the "delay of the effective date." But no where in Rule 2.140(d) does it say that the effective date of a rule change is delayed until after the FSC receives these "comments" and considers these "comments" after the date fixed by the FSC for further consideration of the rule change. Furthermore, Rule 2.140(d) only requires the FSC to set a date for the receipt of "comments" -- not motions. But, technically speaking, -- until the receipt of these "comments" passes -- the Opinion itself cannot become final. But that does not change or alter the date of effectiveness of the Rule Change. Otherwise, Rule 2.140(d) provision that a rule change "may become effective immediately" is meaningless. It could never be "effective immediately" because it would always be subject to the time period fixed by the FSC for the receipt and consideration of "comments". Although the language -- "Not Final Until Time Expires To File Rehearing Motion, And If Filed, Determined" -- is confusing, it is my contention that this language relates to the Opinion's finality, not the effectiveness of the Rule change. You state: what is the intent and effect of the following language within the amendment itself: "Not Final Until Time Expires To File Rehearing Motion, And If Filed, Determined". That Language is NOT in the amendment to the rule. It is at the end of the Opinion which relates to the amendments to the rule. The Amendment to Rule 1.110(b) is set forth in the Appendix of the Opinion. I maintain, that the intent and effect of that "Not Final" language relates to the part of the Opinion which states that "Interested persons may have sixty days from the date of this opinion in which to file comments, on those amendments only, with the Court." The amendments referred to are those amendments to Form 1.996(a)(Final Judgment of Foreclosure). Thus, the OPINION does not become final until after the sixty days. But the Date of Effectiveness of Amended Rule 1.110, Florida Rules of Civil Procedure, set forth in the Appendix requiring verification of Mortgage Foreclosure Complaints, remains February 11, 2010. The Opinion clearly states that the "amendments shall become effective immediately upon the release of this opinion." There is no other date signifying the "release" of this opinion other than February 11, 2010. Thus, the amendment to Rule 1.110 is effective on February 11, 2010, even though the Opinion may not be final for sixty days or after the FSC considers these "comments". Let me state again, the opinion states that the amendments to the Rules becomes Effective upon the RELEASE of the Opinion. The Opinion was RELEASED on February 11, 2010. Clearly, the FSC intended these amendments to the Rules – especially the one requiring verification of the Complaint – to be EFFECTIVE on February 11, 2010 – the date the Opinion was Released.

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09/18/10 Carol C Asbury, Esquire

Paralegal's point is set forth below: After > yesterday's outcome on the Motion to Dismiss for lack of > verification, I re-read the Supreme Court rule change, and > researched the issue of whether a rule change made by the > Supreme Court is delayed while a party seeks re-hearing on > Such. At first glance, I was convinced that the rule took > effect immediately. This is supported by the fact that the > Supreme Court stated in its Order which amended the rule > "The amendments shall become effective immediately upon > the release of this opinion.", I also found no > case law to support a different interpretation, > although I only spent a few hours doing so and it is a tuff > question to research. > > BUT THEN, I found another recent amendement > to other rules of procedure where the Supreme > Court specifically stated that the Amendments took > effect immediately and were final even if a > motion for rehearing was filed. I then looked again at the > Rule 1.110(b) amendment order and it specifically states, > "Not Final Until Time Expires To File Rehearing Motion, > And If Filed, Determined". I have to assume > that when the S.C. makes the distinction itself of when a > Rule change is FINAL and when it is not, that the intent to > these amendements was to not make the change final > until the rehearing issue was determined. Although > inconsistant with the other langauge within its Order that > the change takes effect immediately, I would have to agree > with Marshall Watson and the Judge, that the rehearing > motion stayed the efective, final date of the change until > the rehearing motion was determined, in accordance wittheh > Supreme Courtt's own language.

I hope your right, but then what is the intent and effect of the following language within the amendment itself: "Not Final Until Time Expires To File Rehearing Motion, And If Filed, Determined".
(My point is that the amendment does not say “Not Final....” but the opinion does states that the amendment to the Rules is effective upon the “RELEASE” OF THE OPINION. The opinion was released on February 11, 2010.

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