DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

LUZ MARIANA DONADO and OSCAR DONADO,

Appellants,

v.

PENNYMAC CORP.,

Appellee.

No. 4D14-1383

[August 19, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Cynthia G. Imperato, Judge; L.T. Case No. CACE

10017106(11).

Vestalia Aylsworth of Aylsworth & Aylsworth, Miami, for appellants.

Nancy M. Wallace of Akerman LLP, Tallahassee, William P. Heller of 

Akerman LLP, Fort Lauderdale, and Celia C. Falzone of Akerman LLP, 

Jacksonville, for appellee.

KLINGENSMITH, J.

Luz Mariana and Oscar Donado (“appellants”) appeal the trial court’s 

final judgment of foreclosure in favor of PennyMac Corporation 

(“appellee”). On appeal, we consider whether the trial court erred by failing 

to dismiss the initial complaint for failure to include verification in its 

pleading as required by then-Florida Rule of Civil Procedure 1.110(b) (“rule 

1.110(b)”).1 We hold that appellee’s failure to verify its complaint caused 

it to be defective. We therefore reverse the final judgment of foreclosure 

1 The current version of rule 1.110(b) no longer contains the verification 

requirement for foreclosure actions on real property. See Fla. R. Civ. P. 1.110(b). 

The language was dropped from rule 1.110(b) in 2014 in light of the creation of 

new Florida Rule of Civil Procedure 1.115. See id. (stating in the committee notes 

that “[t]he last two paragraphs of rule 1.110(b) regarding pleading requirements 

for certain mortgage foreclosure actions were deleted and incorporated in new 

rule 1.115”); see also Fla. R. Civ. P. 1.115(e).
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entered in favor of appellee and remand this case to the trial court for 

dismissal of the action without prejudice.

Because appellants’ issue pertains to the sufficiency of the initial 

complaint, the appropriate standard of review is de novo. See Rubenstein 

v. Primedica Healthcare, Inc., 755 So. 2d 746, 748 (Fla. 4th DCA 2000) 

(“Because the issue of whether a complaint is sufficient to state [a] cause 

of action is one of law, the standard of review is de novo.”). Additionally, 

“[t]he standard of review of a trial court’s interpretation of the rules of civil 

procedure is de novo.” R.T.G. Furniture Corp. v. Coates, 93 So. 3d 1151, 

1153 (Fla. 4th DCA 2012).

On April 19, 2010, appellee filed a complaint against appellants alleging 

one count of foreclosure, and attached both the note and the mortgage. 

The complaint did not contain any verification language as required by the 

Florida Supreme Court when it amended rule 1.110(b) to “require 

verification of mortgage foreclosure complaints involving residential real 

property.” In re Amendments to the Fla. R. Civ. P., 44 So. 3d 555, 556 (Fla. 

2010). The court added the following language to that rule:

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.”

Id. at 560.

The court also stated that the amendment was to “become effective 

immediately upon the release of this opinion,” on February 11, 2010. Id.

at 559.

After this opinion initially was released, the court issued a revised 

opinion on June 3, 2010. See JP Morgan Chase Bank v. Jurney, 86 So. 3d 

1182, 1183-84 (Fla. 2d DCA 2012) (explaining the events following the 

initial February 11, 2010 publication of In re Amendments to the Florida 

Rules of Civil Procedure). This modified opinion also was dated February 

11, 2010, and stated that the amendments were to be “effective 

immediately upon the release of this opinion.” Id. at 1184. Moreover, the 
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revised opinion did not change any of the original opinion’s amendments 

to rule 1.110(b). Id.

In light of the issuance of the modified opinion, appellee maintains that 

the effective date of the amendment to rule 1.110(b) was the date of its 

release, specifically June 3, 2010. Because the modified opinion was 

issued over two months after appellee filed its initial complaint, appellee 

claims that it was not required to include a verification. That position is 

incorrect.

Because the court’s modified opinion clearly lists February 11, 2010,

as the effective date of the amendment to rule 1.110(b), this is the point in 

time after which all foreclosure complaints were required to contain a 

verification. See id. (stating that “[i]t is the understanding of this court 

that, in this context, the supreme court intends rules to become effective 

on the issuance of the original opinion and to remain effective during any 

period in which a motion for rehearing can be filed or is pending”); see also

Phillip Padovano, Florida Appellate Practice § 18.7, at 356-57 (2007-2008

ed.) (noting that finality and the effective date of an appellate decision are 

“distinct concept[s],” and stating that “[t]he effective date of an appellate 

decision is the date appearing on the face of the decision, even though 

most decisions do not actually become final until after the time has expired 

for filing a motion for rehearing . . . the date appearing on the decision is 

the effective date”). As such, appellee was required to file a foreclosure 

complaint containing either an oath, affirmation or verification language 

sufficient to comply with the rule.

It is clear from the record that the complaint at issue did not contain 

any of the verification elements necessary for compliance with the 

amendment to rule 1.110(b) in place at that time, nor were there any other 

terms or attachments that reasonably could have satisfied the verification 

requirement. See, e.g., BAC Home Loan Servicing, L.P. v. Stentz, 91 So. 3d 

235, 236 (Fla. 2d DCA 2012) (reversing trial court’s decision to dismiss 

appellant’s amended complaint with prejudice for failure to verify because 

the court found that appellant’s “usage of the terms ‘to the best of my 

knowledge and belief’” satisfied the verification requirement); Becker v. 

Deutsche Bank Nat’l Trust Co., 88 So. 3d 361, 362 (Fla. 4th DCA 2012) 

(holding that the verification requirement in rule 1.110(b) was satisfied 

where “verification was attached to the complaint as a separate document 

rather than incorporated within it,” and stating “[w]e will not read more 

into the rule than its plan language dictates”).
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Appellee’s failure to include the necessary verification in its complaint 

constitutes a defect of such significance that the trial court should have 

dismissed this action without prejudice.

Reversed and Remanded.

WARNER and MAY, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.