John Lewis -
Thanks for posting the two appellate briefs in BAC v Stentz! The pleadings from the underlying case are also interesting and informative.
I read t's thoughtful post and each of the briefs in Stentz.
I believe that Stentz has a very good chance on appeal, but not because of the merits of the verification argument. To the contrary, I beleive that BAC has the winning argument on verification.
Like it or not, the Florida Supreme Court gave plaintiff's the express authority to verify foreclosure complaints on information and belief. This seems to me to reflect that the Florida Supreme Court want to give the appearance that it was addressing the robo-signing issue, while giving plaintiffs a green light to continue lying.
While I think that it would be better if the language of the rule were amended to require that the verification be on personal knowledge, that is not what the rule says. BAC's brief is quite persuasive on this point and is precisely what Sid and Paul argued last night (with or without the benefit of these briefs, which I am tonight reading for the first time).
But I still believe that Stentz has the better argument on appeal, but not as to verification. I believe that the argument presented by the talented folks at Ice Legal that BAC cannot request an order and then argue that it was error for the court to grant this request is dead on correct.
I am a little perplexed about what BAC's attorney thought they were accomplishing. In most places, an order of dismissal is an appealable final order, whether the order is with or without prejudice.
While I think that BAC was right on the law as to the verification issue, requesting that a court enter an order order of dismissal with prejudice, when the court was inclined to dismiss without prejudice seems to me to be legal suicide.
Typically, an appellant must complain to the appellate court as to issues raised and preserved in the trial court and complained of on appeal. Here, BAC has requested an order of dismissal and now wants that order set aside.
From what I garner from the two briefs in Stentz, the Circuit Court (trial court) found the original complaint to be deficient in respect of the verification and ordered the plaintiff to amend its pleadings within a particular time frame.
This the plaintiff failed to do. Instead, the plaintiff waited until well after the deadline and then filed an amended pleading out of time without obtaining the court's permission. Accordingly, the argument presented by Appellee's attorney Enrique Nieves of Ice Legal seems to be a somewhat compelling one. The court ordered BAC to file an amended complaint. It failed to do so in a timely way, violating the court's implicit scheduling order.
All of the arguments by BAC then seem somewhat academic. The amended complaint was not timely filed. BAC has conceded that it erred in other ways beyond those noted as to the verification. This would seem to be a valid reason for the court to dismiss the complaint without prejudice as the court desired to do. Instead, the court entered an order dismissing with prejudice at BAC's request.
So I would think that the court was well within its discretion to dismiss the BAC complaint. That this dismissal was with prejudice was at BAC's request over the objection of the defendant, so BAC can hardly now complain.
I think that Stentz still can win without respect to the merits of the verification issue. That GW thinks the verification issue affords some robust defense reflects only that GW is delusional. Of course, the plaintiff in GW's could make the same mistake made by BAC, but by now one would expect that the servicers ought to know not to make this mistake again.
Nothing about the order in Stentz offer the slightest of hope that other trial courts will follow the direction taken by the court in the Stentz case. The Rule is reasonably clear at least as it respects the issue of a verification on information and belief.