Brevard Mortgage Foreclosure Procedures
Brevard Mortgage Foreclosure Procedures
Brevard Mortgage Foreclosure Procedures
THIRD REVISED
POLICIES and PROCEDURES
Residential Mortgage Foreclosures
Homestead and Non-Homestead
Effective 9/23/10
Revised 11/10/10
Revised 1/7/11
Revised 2/10/11
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POLICIES AND PROCEDURES
Introduction……………………………………………………………..….. Page 3
Affidavits/Acknowledgements……………………………………… Page 9
Allonges………………………………………………………………………….. Page 14
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Brevard County Mortgage Foreclosure Division
The Moore Justice Center
2825 Judge Fran Jamieson Way
3rd Floor
Viera, FL 32940
321-637-5470 – main number
321-637-5642 – fax
Introduction:
First, below is a form which should be completed by your staff in each case when Summary Judgment
is scheduled to assist the court in reviewing the file in advance and minimize the time required to track
service of process and defaults. Please distribute the form to all your attorneys and staff and require
them to be completed and filed.
Second, if you have a Motion for Summary Judgment scheduled, include in your cover letter sent with
the packet a statement that you will be available for one hour after the hearing time scheduled and
provide a valid number where you may be reached by telephone. You are NOT required to call in if you
provide the necessary information in your cover letter and provide the form that is attached on the next
page. If no defendant appears and there is no problem in the file, we will enter the Summary Judgment
and get it out to the Clerk and a copy to you and all parties. If a defendant does appear or if there is a
problem with the file, we will telephone you for a hearing on the motion or the problem found in the
file. PLEASE BE AWARE THAT THIS PROCEDURE ONLY APPLIES TO MOTIONS FOR SUMMARY
JUDGMENT, you will need to call in for all other hearings that have been set in accordance with
the procedures as outlined herein. Please inform the attorneys, paralegals and secretaries in your
firm of this new procedure.
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IN THE CIRCUIT COURT IN AND FOR
BREVARD COUNTY, FLORIDA
CASE # 05-20__-CA-_________-XXXX-XX
Plaintiff,
Defendant.
__________________________/
I HEREBY CERTIFY THE FOLLOWING:
Plaintiff’s Status:
__________________________________
Attorney/Name-Firm
PLEASE NOTE: See instructions for use of this form – DO NOT FAX to Mortgage
Foreclosure Division to set a hearing. This form is for use for the actual MSJ hearing and
should be submitted with your MSJ Final Package as per instructions on Page 3.
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PROCEDURES FOR SETTING MOTION FOR SUMMARY JUDGMENT
HEARINGS/OTHER HEARINGS:
Summary judgment motions are being scheduled for hearing with the
Court prior to the attorney handling the file fully preparing the case for
hearing. As a result, the Court spends time examining the file and
discovering that a party has not been defaulted, a motion to dismiss is
pending, no notice of hearing is in the file, no note has been filed and no
summary judgment packet has been received, among other problems with
the file.
Please fax the Certification along with the contact information (e-mail
address/phone number) of the person who the Court can communicate with
to schedule the hearing. Once the Certification has been received by the
Court, you may then contact the Court at (321)-637-5470 after 3:00 pm to
coordinate a hearing time.
a) call the Court after 3:00pm at (321) 637-5470 and have all
information ready;
b) e-mail your request to [email protected] with the
information as requested below; or
c) fax a Hearing Request (a copy is attached as an exhibit for your
use) to (321)-637-5642.
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Please have the following information available when you are
requesting and/or e-mailing for a hearing:
Below is an example you can use for reference to e-mail your request:
NOTICE OF HEARING:
When preparing the Notice of Hearing, all hearings are heard before the
Presiding Judge – Mortgage Foreclosure Division, The Moore Justice Center
3rd Floor, 2825 Judge Fran Jamieson Way, Viera, FL 32940 321-637-5470.
Please include in your notice if you are appearing telephonically and follow
the procedures outlined herein. Please provide this office a courtesy copy of
the Notice of Hearing only, it is not necessary to provide copies of any
motions as long as they have been filed with the Clerk.
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ATTENDING HEARING IN PERSON:
If you are attending the hearing in person, please check in with the Court
Information Specialist on the 3rd Floor and/or proceed to the end of the hall
past the Court Information Specialist and have a seat and wait for the Court
Deputy to call you. All hearings are on the 3rd Floor – Mortgage Foreclosure
Division at The Moore Justice Center in Viera.
CANCELING HEARINGS:
The last minute cancellation of reserved hearing time wastes the courts time
and there are multitudes of attorneys and pro se litigants requiring hearing
time. If you need to cancel reserved time, you must notify this office at
least FIVE (5) BUSINESS DAYS prior to the date of the hearing so the
time can be utilized by others. The Court will not allow any cancellations,
other than in extraordinary circumstances and after a hearing on the issue,
except for matters which are resolved, which were the issues for which the
time was reserved. Any hearing time cancelled will require the moving
attorney or pro se to file a written Notice of Cancellation including resolution
of the issue. Failure to cancel prior to five business days, except in
circumstances approved by the Court or settlement of the issues addressed,
will result in the hearing remaining on the docket and, if counsel does not
appear, denial of the relief requested. You may fax the Notice of
Cancellation to this office at 321-637-5642 – no cover letter is needed. Only
the person who scheduled the hearing may cancel it.
AFFIDAVITS/ACKNOWLEDGEMENTS:
The Court continues to see hybrid jurats on affidavits and some affidavits
which conclude with “to the best of my knowledge and belief.” To be an
affidavit, the Notary Public or other officer taking the oath must state in the
jurat that the party was sworn and that the matters in the affidavit are true.
This is allowed because the affiant could not have personal knowledge of all
the facts but must rely upon others.
Short form:
Various hybrid forms of purported jurats are in use and do not meet the
requirements. One seen often is as follows:
The missing part is that the person did not say that the statements alleged
were true or what oath the person took. Could it be an oath that the person
is who he/she said he/she is?
Please make sure your clients and employees utilize a proper oath or
affirmation when signing affidavits. Otherwise your case may be delayed as
defective affidavits create additional work and time on the part of all
concerned.
LOST DOCUMENTS:
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If adjustable rate, beginning interest rate, rate at time of default,
and maximum rate in note
Amount and frequency of payments
Maturity date of note (when required to be paid in full)
Right to prepay with or without penalty, in full or in part, and if
penalty, what it is
If note provides notice upon default and right to cure default, how
many days after written notice. (if notice given by U.S. Mail, add 5
additional days)
Right to cure default after complaint filed
AFFIDAVIT OF INDEBTEDNESS:
The Court has observed that many law firms submit an affidavit of
indebtedness in a summary judgment motion in which the affiant is
described as an “agent” of the Plaintiff/Servicer; attorney in fact for servicer;
limited signing agent, etc. The affidavit of indebtedness must be accurate
and must clearly identify who the signing affiant is employed by and affiant’s
position with his employer and that the affiant has personal knowledge of
the account. An officer of the Plaintiff is always preferred. One prevalent
affidavit states that the affiant is an employee of the servicer but never
identifies who the servicer is.
If you schedule the motion before discovery is closed, the motion may
be premature. The following cases hold that summary judgment should not
be entered while discovery is pending because it is premature. Sanchez v.
Sears, Roebuck and Co., 807 So.2d 196 (Fla. 3rd DCA 2002); Kimball v.
Publix Supermarkets, Inc., 901 So.2d 293 (Fla. 2nd DCA 2005), Henderson v.
Reyes, 702 So.2d 616 (Fla. 3rd DCA 2008); and Payne v. Cudjoe Gardens
Property Owners Association, Inc., 837 So.2d 458 (Fla. 3rd DCA 2002).
In the future, such affidavits MUST identify the employer, and if not
the Plaintiff, the name of the entity with whom the affiant is employed and
the relationship to the plaintiff. They must be made by a custodian of the
records or one with personal knowledge of the records and business
practices relating to the business records, and must delineate how the
affiant has the knowledge to be competent to sign the affidavit as proof of
the amounts due. Otherwise it will not suffice to support a Motion for
Summary Judgment. An affidavit by an “attorney-in-fact” will not support a
Summary Judgment.
PROOF OF STANDING:
Arguments are being made to the Court when Plaintiff fails to attach a
copy of the note to the complaint, that later filing the original note in the
Court file and giving notice of its filing to the Defendants cures the failure to
attach it to the complaint. Cited for this proposition is Hughes v. Home
Savings of America, 675 So.2d 649 (Fla. 2nd DCA 1996) which distinguishes
Eigen v. Federal Deposit Insurance Corporation, 492 So.2d 826 (Fla. 2nd DCA
1986).
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In Hughes, the Plaintiff had attached a copy of the note and mortgage
to the original complaint. An amended complaint was filed and neither the
note nor the mortgage was attached to it. The Court held that the defect
could have been cured by filing the original note and mortgage in the court
file with notice given to Defendants. In Holmes, the notice of filing of the
original documents was not served on defendants. In Eigen, the same fact
circumstance occurred except that the Defendants were served notice of the
filing of the documents which cured the defect. The fact that the note and
mortgage were attached to the original complaint does not breathe life into
the amended complaint which was void of exhibits.
Both cases cited dealt with amended complaints, not the original
complaint. Failure to attach copies of the documents sued upon may fail to
state a cause of action. This court questions the logic in the case cited but
until the Fifth District rules on this issue, the court is bound by the ruling of
the Second District.
ALLONGES:
It should be noted that the rule provides that the “document filed” (the
complaint) shall include the oath or affirmation of the required language. In
SC 09-1460 and SC 09-1579, The Florida Supreme Court commented on
why the amendments were added. The primary purpose is 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; to conserve judicial resources that are currently
being wasted on inappropriately pleaded “Lost Note” counts and inconsistent
allegations; to prevent the wasting of judicial resources and harm to
Defendant resulting from suits brought by Plaintiffs not entitled to enforce
the note; and to give the trial courts greater authority to sanction Plaintiffs
who make false allegations.
This Court will require that the verification be made on the complaint
filed, not a separate document. The Court also requires that the verification
be signed by an officer of Plaintiff, not an assistant officer, foreclosure
specialist or other person whose duties are unclear as to how they would
know that the information in the complaint is accurate. Verifications signed
by Plaintiff’s lawyer are not acceptable.
The Court is encountering cases in which the Plaintiff assigns the bid at
the judicial sale to another entity such as the Secretary of Veterans Affairs,
Federal National Mortgage Association, etc. and a certificate of title is issued
in the assignee’s name as a result. Later, the Plaintiff files a Motion to
Vacate the Final Judgment, sale, and certificate of title and the motion
purports to include the assignee but there is nothing in the record to verify
that the attorney is representing the title holder or bid assignee. Due
process and property rights may be impacted by entering the order without
the assignee’s written joinder and consent, especially when title has vested
in the assignee by virtue of the certificate of title. The Court has notified
counsel of this concern. However, new motions are filed in the name of the
Plaintiff and title holder when the record does not show that Plaintiff’s
attorney represents the title holder and no written consent or joinder in the
motion by the titleholder is provided.
If a bid has been assigned by the Plaintiff and Plaintiff wishes to vacate
the sale and/or certificate of title if one has been issued, the Plaintiff’s law
firm must represent the assignee/titleholder in the record or obtain and file
the written consent and joinder of the assignee/titleholder along with the
motion.
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ADDITIONAL INFORMATION:
The Mortgage Foreclosure Division of Brevard County DOES NOT have an ex-
parte calendar for emergency hearings.
The Mortgage Foreclosure Division of Brevard County DOES NOT use the JACS
Internet system for scheduling.
Commercial Mortgage Foreclosures are to be heard by the original Judge
assigned to the case.
The Mortgage Foreclosure Division of Brevard County DOES NOT
hear foreclosure of association liens
If you have received a LOPS or CMC Hearing Notice from this division, please
note that telephonic attendance at these hearings IS NOT permitted.
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EXHIBIT “A”
Plaintiff(s)
v.
Defendant(s)
___________________________________________/
CERTIFICATION
The undersigned attorney hereby certifies the following:
2. I have examined the file and certify that all pleadings, defaults,
voluntary dismissals, etc. are contained in the file and that the
matter is appropriate for summary judgment.
3. I further certify that the Final Judgment, Notice of Sale, etc. will be
provided to the court at a minimum of five (5) days prior to the
scheduled hearing.
________________________________________________
Examining Attorney
Firm Name/Address/Contact Info
PLEASE NOTE: This form is REQUIRED to be faxed in order to set a Motion for
Summary Judgment Hearing.
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IN THE CIRCUIT COURT OF THE
EIGHTEENTH JUDICIAL CIRCUIT IN
AND FOR BREVARD COUNTY, FLORIDA
05-20____ - CA - ___________
Plaintiff
Vs.
Defendant
__________________________/
HEARING REQUEST
The undersigned hereby requests that the following motion be scheduled with
the Mortgage Foreclosure Division:
_____ There is opposing counsel – The undersigned has coordinated hearing with opposing
counsel. If hearing is to be attended telephonically, The moving attorney has the obligation to
place the telephone conference call and conference in opposing counsel or pro se.
Opposing counsel:
Attorney Name:________________________________________________
Law Firm:_____________________________________________________
Address:______________________________________________________
Telephone Number:_____________________________________________
E-mail:_______________________________________________________
Law Firm:_________________________
Address:__________________________
Phone:___________________________
E-Mail:___________________________
Designated plaintiff liaison: __________
_________________________________
PLEASE NOTE: This form is provided for your use to schedule hearings with the
Brevard County Mortgage Foreclosure Division as it assists with all
necessary information that will be needed to set a hearing.
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