Response Brief

8/2/2019 Response Brief

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In the District Court ofAppeal Second District ofFlorida CASE NO. 2D11-6137

(Lower Tribunal Case No. 09-018268-CI-l1)

U.S. BANK NATIONAL ASSOCIATION, ET AL., Petitioner,

v. GRACIELA MILLS GLASS and STEVEN GLASS,

Respondents.

RESPONDENTS' RESPONSE TO PETITION FORWRIT OF CERTIORARI

Respectfully Submitted,Matthew D. Weidner, P.A.Counsel for Respondents1229 Central Avenue

S1. Petersburg, FL 33705Telephone: (727) 894-3159Facsimile: (727) 894-2953

Email: [email protected]
mailto:[email protected]:[email protected]


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TABLE OF CONTENTS Table ofAuthorities ..................................................................................................................... iii Preliminary Statement ................................................................................................................. vi Intro


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VI. THE 1RIAL COURT CORRECTLY DISREGARDED PETITIONER'S OBJECTION TO TIffi OBJECTION DID NOT ESTABLISH FACT .................... 18 Conclusion ................................................................................................................................... 19 Certificate ofService ......................-........................................................................................... 20 Certificate ofCompliaIlce ..........................................................................................................21

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TABLE OF AUTHORlTIESCASES

Ballinger v. Bay GulfCredit Union, 51 So. 3d 528 (Fla. 2d DCA 201 0) ..................................................................................... 12

Belair v. Drew, 770 So. 2d 1164 (Fla. 2000) ................................................................................................... 3

Blimpie Cap. Venture v. Palms Plaza, 636 So. 2d 838 (Fla. 2d DCA 1994) .................................................................................. 19 Campbell v. Salman, 384 So. 2d 1331(Fla. 3d DCA 1980) ................................................................................. 12 Combs v. State, 436 So . 93 (Fla. 1983) ............................................................................................................. 6

Department ofLaw Enforcement v. Real Property, 588 So. 2d 957 (Fla. 1991) ................................................................................................... 17

Feltus v. u.s. BankNational Association, Op. at 3, n. 1 (Fla. 2d DCA January 27,2012).................................................................. 2

First Mortgage Investors v. Boulevard National Bank ofMiami, 327 So.2d 830 (Fla.3d DCA 1976) ..................................................................................... 12 Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983,32 L.Ed.2d 556 (1972) ...................................................... 17 Haines City Cmty. Dev. V. Heggs,658 So. 2d 523 (Fla. 1995) ..................................................................................................... 6 Hordis Bros., Inc. v. Sentinel Holdings, Inc., 562 So. 2d 715, 718 (Fla. 3d DCA 1990 ........................................................................... 12 In re: Amend. to the Fla. R. Civ. P.,44 So. 3d 555 (Fla. 20 10) ................................................................................................... 7, 8

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In re: Amend to the Fla. R. Civ. P. - Form 1.966, 51 So. 3d 1140 (Fla. 2010) ................................................................................................. 8, 9

Ivey v. Allstate Insurance Co., 774 So. 2d 679 (Fla. 2000) ................................................................................................. 6, 7

Leon Shaffer Golnick Advertising v. Cedar,423 So. 2d 1015,1017 (Fla. 4th DCA 1982) ............................................................. 18,19

Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987) ................................................................................................. 3, 11

Pearlstein v. King, 610 So. 2d445 (Fla. 1994) ............................................................................................. 15, 16

Pino v. Bank ofNew York Mellon, 57 So. 3d 950 (Fla. 4th DCA 2011 ) ............................................................................... 9, 10

Silber v. Campus Sweater & Sportswear, 313 So.2d 409 (Fla. 1st DCA 1975) ................................................................................... 12 Singleton v. Greymar Associates, 882 So. 2d 1004 (Fla. 2004) ................................................................................................. 14

State v. Brugman,588 So. 2d 279 (Fla. 2d DCA 1991) .................................................................................. 19 State ex reI. Gore v. Chillingworth, 126 Fla. 645, 171 So. 649 (1936) ....................................................................................... 17

Stilson v. Allstate Insurance Co., 692 So. 2d 979 (Fla. 2d DCA 1997) ..........................................................................6, 7,10 Wright v. Sterling Drugs, 287 So.2d 376 (Fla. 2d DCA 1973) ................................................................................... 11

STATUTES AND RULESFla. Stat. 92.525 (2011) .............................................................................................................. 3

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Rule 9.110, Fla. R. App. Pro. (2011) ................................................................................... 14 Rule 1.0700), Fla. R Civ. Pro. (2011 )...................................................................................... 16 Rule 1.11O(b), Fla.R Civ. Pro. (20 11)..............................................................................passim Rule 1.190(c), Fla. R Civ. Pro. (2011) ..................................................................................... 15 Rule 1.420(a), Fla. R. Civ. Pro. (2011) ..................................................................................... 14 Rule 4-1.7(9), Florida Rules ofProfessional Conduct (2011) ...................................... 13

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PRELIMINARY STATEMENT During the drafting of this Response, undersigned counsels noticed

something curious about the appendix filed by U.S. BANK NATIONALASSOCIATION, ET AL. ("Petitioner"). Specifically, Document 3, which claimsto be the foreclosure complaint filed in this matter, contained a copy of the allegedpromissory note which contained two endorsements on it. This struck undersignedcounsels as incorrect because they remembered the complaint which existed in thecourt file did not contain a copy of the note attached to it. In fact, the absence of anote endorsed in blank attached to the complaint was one of the many reasons thetrial court dismissed the complaint with leave to amend.

On February 6, 2012 undersigned counsel reviewed the court file. Assuspected, the complaint filed in this case does not contain a copy of the allegednote with endorsements affIXed. Indeed, no note is attached to the complaintwhatsoever. A true and correct copy of the complaint as found in the court file isattached hereto as Exhibit "1".

The crux of Petitioner's petition is its absolute unwillingness to verify theamended complaint as required by the trial court. Instead, Petitioner wishes todelegate this duty to a "servicing" agent. Undersigned counsels respectfullysubmit that Petitioner's improper filing of what it claimed to be the complaintexemplifies exactly why it rather than its servicing agent, should be charged with

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verifying the amended complaint. Moreover, undersigned counsels alsorespectfully submit that this improper filing is grounds for dismissal or denial ofthe petition.

VII


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INTRODUCTION In what is a case of first impression in this State, Petitioner, plaintiff in the

underlying foreclosure action, seeks a writ of certiorari as to a nonfinal andnonappealable order dismissing its complaint with leave to amend. DespitePetitioner's attempt to distract this Court from the true issues under review, theonly questions Petitioner's inappropriate petition present are: (1) whether the trialcourt departed from the essential requirements of law when it rendered its decision;and (2) whether the trial court's order causes Petitioner to suffer irreparable harmwhich cannot be corrected on post-judgment appeal. Since the answer to bothquestions is a resounding "no," Petitioner's writ should be denied with alldeliberate speed.

STATEMENTOF THE CASE AND FACTSAs Petitioner correctly points out, it filed a two count complaint against

GRACIELA MILLS GLASS and STEVEN GLASS ("Respondents"). The firstcount pled for mortgage foreclosure of residential real property owned byRespondents, and the second prayed for reestablishmentof what was purportedly alost, stolen, or destroyed promissory note.

At some point after commencing the action, the purported "original note"was apparently discovered and filed with the Court. The alleged original note wassubstantially different than the copy of the note attached to the complaint in that

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the purported original contained an endorsement in blank whereas no suchendorsement existed on the copy. I Notwithstanding this fact, and without everamending the complaint to include a copy of the purported original note as anattachment, Petitioner set Respondents' motion to dismiss for hearing onNovember 4, 2011.

At the hearing, the trial court granted Respondents' motion and orderedPetitioner to file an amended complaint within 45 days of the hearing. In addition,the trial court ordered, pursuant to the revised Fla. R. Civ. P. 1.11O(b), that theamended complaint be verified, that the verification be in accordance with Fla.Stat. 92.525(20 11), and that the verification be executed by Petitioner itself.Petitioner thereafter filed an unverified objection to a proposed order which wouldhave required it, rather than its servicing agent, to verify the amended complaint.This objection argued, inter alia, that: (l) it had some unnamed servicing agent;and (2) that there was a power of attorney which allowed said unnamed party toexecute documents in Petitioner's name.

It is of critical importance to note that in its objection Petitioner failed toname the servicing agent; failed to qualify any of the statements by either verifying

I Indeed, this Court recently held the filing of an original note, endorsed in blank,is an ineffective method of amending a complaint for foreclosure where the noteattached to the original complaint failed to include such an endorsement and thecomplaint also pled for lost note. Feltus v. US. Bank National Association, SlipOp. at 3, n. 1 (Fla. 2d DCA January 27,2012).2


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the objection under penalty of perjury or by providing an affidavit in support of it;and failed to attach an authenticated copy of the alleged power of attorney.Consequently, Petitioner's objection was nothing more than a series of unswornallegations by its counsel, none of which were stipulated to by Respondents'counseL The trial court thus correctly disregarded Petitioner's objection when itrendered a written order directing Petitioner, rather than its servicing agent, toverify the amended complaint.

Because Petitioner is unwilling and, it argues, completely unable, to verifythe amended complaint itself as required by the trial court, it has sought certiorarireview on the limited aspect of the trial court's order requiring Petitioner itself toverify its own amended complaint.

STANDARD OF REVIEWTo obtain a common law writ of certiorari, a petitioner must demonstrate:

(1) that the lower court departed from the "essential requirements of law" inrendering a decision; (2) a material injury resulting from this departure; and (3)that the material injury cannot be corrected on post-judgment appeaL See e.g.Belair v. Drew, 770 So. 2d 1164, 1166 (Fla. 2000); Martin-Johnson, Inc. v.Savage, 509 So. 2d 1097, 1099 (Fla. 1987).

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SUMMARY OF ARGUMENT As a threshold matter, the petition should be summarily denied because the

lower court's order does not depart from any essential requirement. of law, becausePetitioner suffers no material injury as a result of the order, and because even ifPetitioner suffered an injury, the injury could be corrected on post-judgment.More exactly, Petitioner fails to point to any clearly established principle of lawwhich the trial court violated that resulted in a miscarriage ofjustice. Indeed, thereis no precedent that Petitioner can point to which the trial court violated because nosuch precedent exists.

Additionally, Petitioner suffers no material injury resulting from the trialcourt order because, contrary to its erroneous arguments, it is not forced to perjureitself since Fla. R. Civ. P. 1.11 O(b) actually permits the verification to be basedupon hearsay statements. Therefore, the only party which is "depriving it of itslegal right to foreclose" is itself.

Even if an injury was suffered by nonfinal order, such an in injury could becorrected on post-judgment appeal. Specifically, Petitioner could: (1) take a fmaldismissal, with or without prejudice, and appeal to this Court; (2) take a voluntarydismissal without prejudice and refile in the unnamed servicer's name; or (3) refilethe foreclosure action alleging a different default even after taking a dismissal withprejudice.

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While this argument alone is enough to deny Petitioner the relief it seeks, itspetition also incorrectly argues that the trial court's order imposed "additionalrestrictions that were [not] contemplated by the Florida Supreme Court." SeePetitioner's Petition for Writ of Certiorari, pg. 8. Contrary to this assertion, theFlorida Supreme Court in fact contemplated Petitioner's position and found itwanting when it denied SHAPIRO & FISHMAN, LLP's ("Shapiro") motion forrehearing or clarification on the revised Rule 1.11O(b) on June 3, 2010.

Likewise, Petitioner's argument that it was denied due process also fails as amatter of law because applying Rule 1.11O(b) to amended complaints filed afterFebruary 11, 2010 is not a retroactive application of the Rule and becausePetitioner was given both notice and the opportunity to be heard as contemplatedby the Florida Constitution.

Finally, the petition should be denied because its "objection" to the trialcourt's order was nothing more than a series of unsworn allegations by its counselthat the trial court rightly disregarded. Indeed, the near entirety of the petition isnothing more than a chain of self-serving and contradictory statements that are notsupported, in any way, by competent record evidence.

ARGUMENTI. THE TRIAL COURT'S ORDER DOES NOT DEPART FROM THEESSENTIAL REQUIREMENTS OF LAW BECAUSE THERE IS

NO CLEARLY ESTABLISHED LEGAL PRINCIPLE WmCHTHE ORDER VIOLATES

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The trial court's order is simply not reviewable upon certiorari because thereis no clearly established principle of law that it the court violated and thereforethere was no departure from the essential requirements of law. The FloridaSupreme Court first promulgated the "essential requirements of law" standard in1894 when it "endorsed" the standard of the Illinois courts. See Haines City Cmty.Dev. V. Heggs, 658 So. 2d 523, 526 (Fla. 1995). The Court thereafter clarified thestandard by providing that "the district courts of appeal should not be as concernedwith the mere existence oflegal error as much as with the seriousness of the error."Combs v. State, 436 So. 93, 95 (Fla. 1983). Courts do have "a large degree ofdiscretion" in determining whether an order departs from the essentialrequirements of law but they "should exercise this discretion only when there hasbeen a 'violation o fa clearly established principle o flaw resulting in a miscarriageofjustice." Id. at 96. (Emphasis added).

In Ivey v. Allstate Insurance Co., 774 So. 2d 679 (Fla. 2000), Florida's HighCourt quashed a decision of the Third District to grant certiorari, declaring that theThird District "merely disagreed with the circuit court's interpretation of theapplicable law, which, as explained in Heggs, is an improper basis for commonlaw certiorari." Id. at 683. The lvey Court also quoted Judge Altenbernd's opinionin Stilson v. Allstate Insurance Co., 692 So. 2d 979 (Fla. 2d DCA 1997), whichprovided that without controlling precedent, there could at most be a

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misapplication of correct law, not a violation of "a clearly established principle oflaw." Ivey, 774 So. 2d at 682 (quoting Stilson, 692 So. 2d at 982-83). The IveyCourt therefore concluded that district courts should not exercise certiorari merely"to provide precedent where precedent is needed." Ivey, 774 So. 2d at 683(quoting Stilson, 692 So. 2d at 982-83).

Here, Petitioner fails to point to any clearly established principle of lawwhich would validate its argument that the trial court's order departs from theessential requirements of law. Moreover, Petitioner cannot do so because no suchprecedent exists. Instead, Petitioner relies solely on its own interpretation of Fla.R. Civ. P. 1.110(b) which was revised by the Florida Supreme Court on February11, 2010. See In re: Amend. to the Fla. R. Civ. P., 44 So. 3d 555 (Fla. 2010).Because there is no controlling precedent, at most the trial court could havemisapplied the correct law, not violate a clearly established principle of law.Consequently, the petition requests that this Court espouse Petitioner'sinterpretation of the Rule merely to provide precedent because it feels precedent isnecessary.

Petitioner's argument actually gIves great credence to the trial court'sinterpretation of the verification rule. On page nine of its petition, Petitioner liststhe four reasons given for the amendment to Rule 1.11 O(b). Even a cursory glanceof those reasons reveal that the Florida Supreme Court intended to hold foreclosing

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plaintiffs, and not their agents, responsible for the verification of foreclosurecomplaints and that at least three of the purposes have been violated in this case.

To begin, Petitioner apparently does not want to appropriately investigateand verify that it owns and holds the note and mortgage and that the allegations ofthe complaint it filed are correct, the first reason given for the rule change. In re:Amend., 44 So. 3d at 556. Rather, Petitioner intends to pass this responsibility offto some unnamed "servicing agent." Second, Petitioner has wasted judicialresources through filing an inappropriate "lost note" count in its complaint, eventhough the "lost" has at some point in time become "found." Wasting preciousjudicial resources these improperly pled counts was the second reason given for theamendment to Rule 1. 110(b). Id. Finally, and perhaps most importantly,Petitioner attempts to avoid any sort of sanction the trial court may levy against itfor making false allegations, the last reason given for the rule change. Id. Insteadof taking ownership of the allegations which it has set forth in its complaint,Petitioner wishes to hide behind its agent and thus escape any culpability whichmay come from making false allegations.

Indeed the Florida Supreme Court later reiterated that the rule change wasintended to hold plaintiffs responsible for the allegations of the complaint when itissued its opinion in In re: Amend. to the Fla. R. Civ. P. Form 1.966, 51 So. 3d1140 (Fla. 2010). There, the Court had this to say about the amendment:

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[R]ule 1.11 O(b) was amended to require verification of mortgageforeclosure complaints involving residential real property. One of theprimary purposes of this amendment was to ensure that plaintiffsand plaintiffs' counsel do their ((due diligence" and appropriatelyinvestigate and verifY ownership of the note or right to enforce thenote and ensure that the allegations of the complaint are accurate. Inlight of recent reports of alleged document fraud and forgery inmortgage foreclosure cases, this new requirement is particularlyimportant.Id. at 1140-41. (Emphasis added). The key words in that opinion are that theamendment was to ensure that plaintiffs do their due diligence in ensuring that theallegations of the complaint as being accurate. Thus, the Court clearly intendedthat plaintiffs verifY the complaint because of questions regarding fraud andimpropriety within the foreclosure arena.

Nowhere was this alleged fraud more perpetrated than in the case ofPino v.Bank ofNew York Mellon, 57 So. 3d 950 (Fla. 4th DCA 2011), where the FourthDistrict bluntly stated that "many, many mortgage foreclosures appear tainted withsuspect documents." Id. at 954. There, Bank of New York brought a foreclosureaction against Pino but voluntary dismissed its action rather than face sanctionsregarding a possibly fraudulent assignment of mortgage. Id at 951-52. The trialcourt refused to set aside the voluntary dismissal and the Fourth District affirmed,but certified the issue to the Florida Supreme Court as one of great publicimportance. Id at 955.

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Perhaps most important to the discussion here is Judge Polen's dissent inPino, in which he declared that the amendment to Rule 1.11O(b) gave trial courtswide latitude to punish plaintiffs for fraudulent allegations, citing the fourth reasongiven for the rule change. Id. at 959. If Petitioner is not required to verify theamended complaint here, how could the trial court ever sanction it if it engaged inthe same reprehensive behavior that the plaintiff in Pino allegedly engaged in?

Finally, Petitioner's argument that denial of its petition would have a"chilling" effect on "thousands" of foreclosure cases because it would createdifferent standards in different circuits needs but a word. Judge Altenbemdconsidered this scenario in Stilson and concluded that while "conflictingapproaches within the numerous circuits could evolve" and that "there may neverbe 'clearly established principles of law' governing a wide array of.. .issues," thiswas not a basis for certiorari relief. Stilson, 692 So. 2d at 982-83.

Therefore, because the trial court's order violates no established principle oflaw, there is no departure from the essential requirements of law and the petitionshould be denied.

II. THE TRIAL COURT'S ORDER DOES NOT CAUSEIRREPARABLE INJURY TO PETITIONER BECAUSEPETITIONER IS NOT CALLED TO PERJURE ITSELF ANDBECAUSE IT DOES NOT DEPRIVE IT FROM FORECLOSING

In addition to not being reviewable under certiorari because the order doesnot depart from the essential requirements of law, the trial court's order does not

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cause irreparable harm to Petitioner. Case law imposes stringent conditions onwhat may be considered "irreparable harm." For instance, incurring considerabletime and expenses due to litigation of a non-issue is not the basis for seekingcertiorari under a theory of irreparable harm. See e.g. Wright v. Sterling Drugs,Inc., 287 So.2d 376 (Fla. 2d DCA 1973), cert. denied, 296 So.2d 51 (1974).Moreover

[e]ven when the order departs from the essential requirements of thelaw, there are strong reasons militating against certiorari review. Forexample, the party injured by the erroneous interlocutory order mayeventually win the case, mooting the issue, or the order may appearless erroneous or less harmful in light of the development of the caseafter the order.

Savage, 509 So. 2d at 1100.Here, Petitioner complains that the trial court's order would cause it

irreparable harm because it forces it to either choose between perjuring itself, as ithas no personal knowledge regarding the allegations of the complaint, or giving upits alleged right to foreclose? Neither is true. As to the first alleged injury,

2 I t is also wholly unclear how Petitioner has no knowledge regarding any of theallegations of the complaint but is able to make certain self-serving assertions in itspetition. Most prominently, Petitioner asserts on page 18 of the petition that"Respondents have been in default since June 1, 2009 and have missed thirty-one(31) payments, which total approximately .. . $295,384.62." This allegation, inaddition to being wholly irrelevant to the subject petition, contradicts Petitioner'sstatement on page 16 of the petition, which provides that "the individual signingon behalfof{Petitioner] would not have the requisite knowledge about the factsplead, except that {Respondent] is the owner and holder of the note." (Emphasisadded). Consequently, Petitioner's allegation regarding the alleged default and

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This allays all of Petitioner's fears that it will be subject to perjury since itapparently has no personal knowledge whatsoever regarding the contents of thecomplaint. If Petitioner truly knows nothing about the allegations of thecomplaint, all the trial court order requires is that it contact the unnamed servicingagent and have that party verify the complaint's allegations before Petitionerexecutes the verification. This would be wholly acceptable under Rule 1.11O(b)because, as stated, the rule actually allows for the verification to be made uponhearsay statements.3

Therefore, because the trial court's order does not contain any irreparableinjury to Petitioner, the petition should be denied.

III. EVEN IF AN IRREPARABLE INJlJRY WAS INFLICTED UPONPETITIONER, SUCH INJURY COULD BE CORRECTED UPONPOST-JUDGMENT APPEALAt this juncture, the trial court is not concerned with who the foreclosing

plaintiff is but only that that party verifies the complaint upon information andbelief. IfPetitioner is unwilling to comply with this, it has several options. First, it3 Petitioner's claim that it only has "personal knowledge" of whether it owns andholds the note and mortgage should be closely scrutinized. This claim means thatthe unnamed servicing agent has "personal knowledge" as to whether Petitionerhired its law firm to represent it, an allegation made in the complaint. However,for this to be true, the servicing agent must have been the one who hired that lawfirm. If this is the case, ethical issues regarding loyalty to the client are implicated.See Rule 4-1.7(9), Florida Rules of Professional Conduct (2011) (which providesthat an attorney may be paid from a source other than a client if the client consentsand the arrangement does not compromise the lawyer's duty of loyalty to theclient).

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can allow the trial court to enter a final order dismissing the action with or withoutprejudice for failure to comply with the court's order and then appeal that order tothis Court pursuant to Fla. R. App. P. 9.110 (2011). Second, it can take a voluntarydismissal of its action without prejudice pursuant to Fla. R. Civ. P. 1.420(a) andthen have its unnamed servicing agent refile the complaint in that party's name.Finally, even if a dismissal with prejudice is effectuated against Petitioner, it canstill file a new action for foreclosure by simply alleging a different default. Seee.g. Singleton v. Greymar Associates, 882 So. 2d 1004 (Fla. 2004).

Therefore, even if some irreparable injury was inflicted upon Petitioner,such injury could be corrected upon post-judgment appeal. As a result, the petitionshould be denied.

IV. THE FLORIDA SUPREME COURT HAS ALREADYCONSIDERED THE ARGUMENTS RAISED BY PETITIONERAND HAS DECLINED TO PROVIDE THE OPINION IT SEEKSHERE

Contrary to Petitioner's contention on page eight of the petition, the FloridaSupreme Court has considered whether servicing agents may verify foreclosurecomplaints and have expressly rejected the argument. Specifically, Tampa-basedlaw firm Shapiro filed a motion for rehearing or clarification of the amendment toRule 1.110(b) on February 25, 2010. (Exhibit 2). Shapiro's motion provides, inparagraph eight, that "[a]s currently drafted, there remains uncertainty as towhether a mortgage foreclosure complaint must be verified by the current holder of

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the note, the loan servicer, the attorney, or some combination of them to be incompliance with the amended rule." (Emphasis added). On June 3, 2010, after

contemplating Shapiro's motion, the Supreme Court found it wanting and issued atwo-page order denying Shapiro's motion. (Exhibit 3).

Therefore, the Florida Supreme Court has contemplated the trial court'sorder and has found it permissible. As a result, the petition should be denied.

V. PETITIONER'S DUE PROCESS ARGUMENT FAILS AS AMATTER OF LAW

The petition generally asserts that Petitioner was denied "due process" bythe trial court's order. This argument fails as a matter of law, however, becausethe trial court's order was not a retroactive application of Rule 1.110(b) andbecause Petitioner was offered notice and an opportunity to be heard.

a. Applying the revised Rule 1.110(b) to amended complaints filedafter February 11,2010 is not a retroactive application of the RuleRather than citing any case law to support its contention that the trial court

impermissibly utilized retroactive application of Rule 1.11 O(b), Petitioner merelyrefers in passing to Fla. R. Clv. P. 1.190(c), the so-called "relation-back rule."However, a 1994 case from the Florida Supreme Court provides guidance as tohow this argument fails.

In Pearlstein v. King, 610 So. 2d 445 (Fla. 1994), the Supreme Court wasconfronted with the question of whether the 120-day time limit for serving a

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defendant after filing an initial complaint, as provided in Fla. R. Civ. P. 1.0700),applies to complaints filed prior to January 1, 1989, the effective date of that rule.The Court held that the 120-day limit applies and quashed the portion of a lowercourt opinion holding otherwise. Id at 445. In so holding, the Pearlstein Courtreasoned that

[a]pplying the 120-day limit to causes of action pending on January 1,1989 .. .is not a true retroactive application. In the instant case, aretroactive application of the rule would require that King have servedthe defendant within 120 days of filing his complaint on November 1,1988. Instead, applying rule 1.0700) to causes of action pending onits effective date would give plaintiffs 120 days from January 1, 1989in which to serve their defendants. This prospective application putsno extra burden on prior filings and does not diminish the time forcomplying with the rule.

Id at 446.It is uncontroverted that the effective date of the amendment to Rule

1.110(b) was February 11,2010. Therefore, a retroactive application of the rulewould have required Petitioner to verify the initial complaint that was filed in2009. This was not what was done. Rather, the trial court merely requiredPetitioner to verify the contents of the amended complaint which would have beenfiled after February 11, 2010. This prospective application put no extra burden onthe prior pleading and did not diminish the time for compliance with the rule.

Therefore, Petitioner's argument, which cites no case law in support thereof,should be summarily discarded and its petition denied.

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Here, not only was Petitioner afforded notice and an opportunity to be heard,Petitioner was the party who called the hearing on Defendant's motion.Petitioner was represented by counsel at the hearing, who argued on its behalf, andwho was simply on the losing side of an argument. Petitioner was therefore notdenied procedural due process.

Because Petitioner was granted all due process rights as contemplated by theFlorida Constitution, its petitioner should be denied.

VI. THE TRIAL COURT CORRECTLY DISREGARDEDPETITIONER'S OBJECTION TO THE PROPOSED ORDERBECAUSE THE OBJECTION DID NOT ESTABLISH FACTFinally, the trial court was absolutely correct in "overruling" Petitioner's

objection to the proposed order because the objection was nothing more than aseries of unsworn allegations by Petitioner's counsel, not stipulated to byRespondents' counsel, which the trial court could not use to establish fact. Inperhaps the subliminal case on an attorney's unsworn allegation, the FourthDistrict had the following to say regarding the matter

[T]he practice we wish to see terminated is that of attorneys makingunsworn statements of fact at hearings which trial courts may consideras establishing facts. It is essential that attorneys conduct themselvesas officers of the court; but their unsworn statements do not establishfacts in the absence of stipulation. Trial judges cannot rely on theseunsworn statements as the basis for making factual determinations;and this court cannot so consider them on review of the record. I fthe advocate wishes to establish a fact, he must provide sworntestimony through witnesses other than himself or a stipulation towhich his opponent agrees.

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Leon Shaffer Golnick Advertising v. Cedar, 423 So. 2d 1015, 1017 (Fla. 4th DCA1982). (Emphasis added). Furthermore, the Cedar Court's holding has beenexpressly endorsed by this Court. See Blimpie Cap. Venture v. Palms Plaza, 636So. 2d 838, 840 (Fla. 2d DCA 1994). See also State v. Brugman, 588 So. 2d 279(Fla. 2d DCA 1991) (holding that, in absence of stipulation, a trial court cannotmake a factual determination based on an attorney's unsworn statements).

Petitioner's objection filed with the lower court and attached as exhibit 11 toits petition was not verified, not supported by affidavit, and not stipulated to byRespondents' counsel. In addition, the objection fails to identifY the name of theservicing agent or in any way authenticate the so-called power of attorney thisunnamed party has to execute documents in Petitioner's name. Therefore, the trialcourt could not rely on Petitioner's counsel's unsworn allegations as the basis formaking a factual determination and this court cannot consider them on a review ofa record.

Therefore, because there is lack of any competent record evidence thatPetitioner does in fact have a servicing agent which is authorized to executedocuments in its name, the petition should be denied.

CONCLUSIONFor the reasons and legal authorities set forth herein, it is respectfully submitted that

this Honorable Court should deny Petitioner's petition for writ ofcertiorari and direct it to19


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file a verified amended complaint in accordance with the trial com's November 8, 2011order.Dated Februaryb ,2012.

Respectfully Submitted,Matthew D. Weidner, P.A.Counsel for Respondents

1229 Central AvenueSt. Petersburg, FL 33705Telephone: (727) 894-3159Facsimile: (727) 894-2953

Email: [email protected] Y : ~ O - Michael P. Fuino, Esq.Florida Bar No. 84191B Y : ~ kcallM Kral, Esq.Florida BarNo. 67952

CERTIFICATE OF SERVICEI HEREBY CERTIFY that a copy of the foregoing has been furnished by

Regular U.S. Mail on this6: of February, 2012 to: Sbaib Y. Rios, Esq.,Counsel for Petitioner, Brock & Scott, PLLC, 1501 NW 49th Street, Ste. 200, Ft.Lauderdale, Florida 33309.

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CERTIFICATE OF COMPLIANCEThe undersigned certifies that this petition complies with the font

requirements set forth in Rule 9.210(a)(2), Fla. R. App. P.

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