Wednesday, August 6, 2014

Defendants’ Rule 1.150 Motion To Strike Sham Pleadings

Defendants’ Rule 1.150 Motion To Strike Sham Pleadings

Two weeks ago I filed a motion to strike sham pleadings in my state court foreclosure. My full motion appears below. This motion was filed as a placeholder or caveat, and only set for hearing prior to the Plaintiff scheduling any hearings, and pending exhaustion of federal judicial review, federal administrative review, investigative law enforcement agency inquiry, and The Florida Bar inquiry of Plaintiff’s counsel Ms. Parsons. (Disclaimer: I am not a lawyer, and this is not legal advice, see my disclaimer at the end of the blog roll. If you have specific questions related to information available on this site, you are encouraged to consult an attorney who can investigate the particular circumstances of your situation.)

Also see the 4closure Fraud blog, Robo-Zombies Attack! Full Deposition of Victoria Scott: Sham Verification of a Foreclosure Complaint, January 6, 2014. Below are some of the statutes, rules and case law I relied upon in my motion to strike sham pleadings in my foreclosure.

DEFENDANTS’ RULE 1.150 MOTION TO STRIKE SHAM PLEADINGS,
PLAINTIFF’S VERIFIED COMPLAINT TO FORECLOSE HOME EQUITY LOAN

7.    The verification found in the foreclosing Plaintiff’s Verified Complaint is a sham pleading and should be stricken pursuant to Rule 1.150(a) Fla.R.Civ.P.

RULE 1.150. SHAM PLEADINGS

(a) Motion to Strike. If a party deems any pleading or part thereof filed by another party to be a sham, that party may move to strike the pleading or part thereof before the cause is set for trial and the court shall hear the motion, taking evidence of the respective parties, and if the motion is sustained, the pleading to which the motion is directed shall be stricken. Default and summary judgment on the merits may be entered in the discretion of the court or the court may permit additional pleadings to be filed for good cause shown.
(b) Contents of Motion. The motion to strike shall be verified and shall set forth fully the facts on which the movant relies and may be supported by affidavit. No traverse of the motion shall be required.

Florida Supreme Court Verification Rule

8.    The Florida Supreme Court [SC09-1460] amended Rule 1.110(b) to require verification of mortgage foreclosure complaints involving residential real property. In re Amendments to the Florida Rules of Civil Procedure, 44 So.3d 555, 556 (Fla. 2010):

First, rule 1.110(b) is amended to require verification of mortgage foreclosure complaints involving residential real property. The primary purposes of this amendment are (1) to provide 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 suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations.

See also In re Amendments to the Fla. Rules of Civil Procedure–Form 1.996 (Final Judgment of Foreclosure), 51 So.3d 1140, 1140–41 (Fla.2010) ("In light of recent reports of alleged document fraud and forgery in mortgage foreclosure cases, this new requirement is particularly important.").

9.    Florida Rule of Civil Procedure 1.110(b) and section 92.525, Florida Statutes (2011), govern verification. Rule 1.110(b) provides, in pertinent part, as follows:

When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement:

"Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief."

Section 92.525 Florida Statutes provides, in pertinent part, as follows:
(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.

FRAUD ON THE COURT

10.    Section 837.06, Florida Statutes, governs False official statements.

837.06 False official statements.—Whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his or her official duty shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

SANCTIONS: DISMISS THE FORECLOSURE WITH PREJUDICE

23.    The Court has the inherent power to sanction perjury, misconduct and other fraud by the Plaintiff. A plain reading of section 57.105(1) Florida Statutes shows sanctions may be awarded "upon the court’s initiative".

 Defendants' Rule 1.150 Motion to Strike Sham Pleadings-July 25, 2014

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