IN THE CIRCUIT COURT OF THE 18TH. JUDICIAL CIRCUIT IN AND FOR BREVARD COUNTY, FLORIDA CASENO.: 05-2010-CA.33741 PNC BANK, NATIONAL ASSOCIATION, Plaintiff, v. KATHLEEN PECKHAM, LAWRENCE PECKHAM, ET AL., Defendants. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS THIS CAUSE came to be heard on January 6, 2011 upon the Defendants’ Motion to Dismiss. The Court having reviewed the Defendants’ written motion, the Court file and applicable case law, and having heard oral argument, does hereby ORDER AND ADJUDGE: I. PROCEDURAL HISTORY. 1, After the Plaintiff filed a Complaint to foreclosure on residential real property in Brevard County Flerida, the Defendants, through counsel served a Motion to Dismiss. Defendants’ Motion To Dismiss alleged that the Plaintiff's Affirmation filed with the Complaint did not comply with Rule 1.110(b). Defendants’ motion also sought dismissal for failure to state a cause of action because the Note, Mortgage and Assignment of Mortgage did not reference the subject Plaintiff. 2. The Plaintiff, when it filed its Complaint, filed a separate document titled, “Fla. R. Civ. P. 1.110(b) Affirmation” that was signed by Becky Anderson, a foreclosure specialist atHome Loan Services Inc. (hereafter HLSI ). HLSI, was the loan servicer at the time the action was filed but is not the current loan servicer or a party to the subject action. RULING The Court finds that the Plaintiff has plead a proper cause of action. The argument raised in Defendants’ Motion to. Dismiss concerning inconsistency between Note and the pleadings can be raised in an Answer and litigated by motion for summary judgment. Florida Rule of Civil Procedure 1.110(b) sets forth the requirements for verification of foreclosure complaints and in pertinent part states: “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” ” Under the plain language of the rule, “the document filed shall include and oath or affirmation” means that the oath or affirmation will be included in the document itself and not in a separate document. Henry Trawick makes clear that “verification’ means that the verifying party attests that, the facts alleged in the complaint are true. Trawicks Florida Practice and Procedure Sec. 6:14 (Verification). Beverette v. Graham, 131 So. 826, 827 (Fla. 1931); Burns v, Burns, 174 $0.24 432, 434 (Fla. 2d DCA 1965), Rule 1.110(b) does not specifically provide foror allow verification to made by a non-party such as a loan servicer or agent of the Plaintiff. 7. The reasons provided by the Florida Supreme Court for instituting the amendment to | Rule of Procedure 1.110(b) were as follows: 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. ii, See Fla. Sup. Ct. Order SCO9-1460 and SC09-1579, p. 3-4 (Emphasis added). 8. The Court construes the plain language of the rule and reasoning for the rule set forth the Florida Supreme Courts Orders SC09-1460 and SCO09-1579, p. 3-4 to require that the affirmation be executed by the Plaintiff itself, 9. The Court finds that Plaintiff's “affirmation” does not comply with Rule 1.110(b).. 10. Defendants’ Motion to Dismiss for inadequate verification is granted. 11. The Complaint is hereby dismissed without prejudice. Plaintiff is granted leave to file an amended Complaint, under the current case number within twenty (20) days of the date of this Order. The amended Complaint SHALL be verified by an officer of the Plaintiffand such verification must be part of the Complaint and not filed as a separate document or exhibit. DONE AND ORDERED at the Brevard Courthouse, located in the Viera, Florida, on this day of 52011. ORIGINAL SIGNED ON JAN 14 2011 Charles M. Holcomb, Circuit fudge: cian a, HOLCOMB RUT UGE Copies to: Claire Brueck Esq. (Attomey for Plaintiff’) Richard Shuster, Esq. (Attorney for Defendants)