JOSHUA A. MUSS, AS TRUSTEE UNDER LAND TRUST AGREEMENT DATED MARCH 16, 1990, APPELLANT,
v.
LENNAR FLORIDA PARTNERS I, L.P., A DELAWARE LIMITED PARTNERSHIP, APPELLEE
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A trustee appealed a summary foreclosure judgment on the Smith Dairy Property, challenging the sufficiency of his verified answer filed in response to a foreclosure action. The court affirmed the foreclosure, holding that verification under Florida's summary foreclosure statute must be made under oath as to the truth of the facts, not merely on information and belief.
The court held that section 702.10 does not permit verification on information and belief alone; verification must be made under oath or affirmation that the facts stated are true. Accordingly, the trustee's verified answer was insufficient to preclude entry of final judgment of foreclosure.
[1] A "verified" document under Florida law requires a person to state under oath or affirm that the facts recited are true, not merely true to the best of their knowledge an…
[2] Verification solely on information and belief is permissible only where expressly authorized by statute.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The requirement that a document be verified means that the document must be signed or executed by a person and that the person must state under oath or affirm that the facts or matters stated or recited in the document are true, or words of that import or effect.”
Establishes the statutory definition of verification under section 92.525(4)(e)
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Join FLexlaw to unlock all legal intelligenceIn December 1993, Lennar Florida Partners I initiated a summary foreclosure under section 702.10, Florida Statutes, against a parcel known as the Smit…
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PER CURIAM.
We affirm an order granting final judgment of foreclosure under section 702.10, Florida Statutes (1993). Although several grounds have been asserted as a basis for affirming the lower court’s order, we address only one, as it is dispositive of the issue on appeal. Green v. First American Bank and Trust, 511 So. 2d 569 (Fla. 4th DCA 1987), rev. denied, 520 So. 2d 584 (Fla.1988).
In December 1993, Lennar Florida Partners I, as authorized by section 702.10, sought a summary foreclosure of its interest in a parcel of land known as the “Smith Dairy Property.” Pursuant to the procedure set forth in section 702.10(l)(a), an order to show cause was served on Appellant and a hearing on the order set. In response, as authorized by the statute, Appellant filed a “verified” answer, affirmative defenses, and a counterclaim. However, rather than stating under oath that the facts contained therein were true, Appellant swore only that the facts were “true to the best of his knowledge and belief.”
Section 92.525(4)(e), Florida Statutes (1993) states that “[t]he requirement that a document be verified means that the document must be signed or executed by a person and that the person must state under oath or affirm that the facts or matters stated or recited in the document are true, or words of that import or effect.” Further, section 92.525(2) authorizes verification solely on information and belief only where “permitted by law.” See State, Department of Highway Safety & Motor Vehicles v. Padilla, 629 So. 2d 180 (Fla. 3d DCA 1993) (verification on information or belief permissible under section 322.2615(2), Florida Statutes (1991), where statute authorized affidavit stating “officer’s grounds for belief’ that person arrested had violated section 316.193), rev. denied, 639 So. 2d 980 (Fla.1994). The term document includes pleadings. § 92.525(4)(b) (1993).
Reviewing section 702.10 in light of the requirements in section 92.525, we find no basis for permitting verification under section 702.10 to be made solely on “information or belief.” As such, Appellant’s verified answer was insufficient to preclude entry of a final judgment of foreclosure as provided for in sections 702.10(l)(b) and (l)(c).
We have considered Appellant’s contention that we need not be concerned with section 92.525 in light of section 702.10’s authorization of the filing of presumably unverified defenses by motion. However, we read this portion of the statute to reference only motions attacking matters appearing on the face of the complaint. We recognize that strict interpretation of this statute might lead to inequitable results in some conceivable circumstances such as those where information needed to prove allegations is exclusively within the knowledge or possession of a party’s opponent or a third party. Nevertheless, the statute is clear and we are bound by its provisions.
STONE, POLEN and KLEIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- E.G. Green v. First Am. Bank & Tr., 511 So. 2d 569 (Fla. 4th DCA 1987)
- State v. Padilla, 629 So. 2d 180 (Fla. 3d DCA 1993)