By: Douglas L. Waldorf, Jr.
One of the new statutes created by HB 87 is 702.015. I referenced this in a prior blog post on July 11, 2013. In reviewing the statute in detail, I find it somewhat unclear as to whether the statute applies only to residential foreclosures or to both residential and commercial foreclosures, depending upon which section is being considered.
Section 1 states the legislative intent behind the statute, that being to expedite the “foreclosure process” with no distinction between residential and commercial cases. Section 2 specifically states that it applies only to residential cases and requires that foreclosure complaints involving one to four family residential dwellings (including condominiums and cooperatives) contain certain specific allegations that the plaintiff is the holder of the original note at the time the suit is commenced. In addition, the complaint must specify the factual basis by which the plaintiff is the person with standing to enforce the obligation. Section 3 does not specifically differentiate between residential and commercial cases and it states that a party that has been “delegated the authority to institute a mortgage foreclosure action” must identify the document that grants the authority to act on behalf of person entitled to enforce the note. Section 4 states that if the plaintiff has the original note in its possession, it now must file an affidavit certifying its possession. This must be filed at the time the complaint is filed and must comply with the informational requirements of the statute copies of the original note and all allonges must be attached to the certification (and, by implication, the complaint as well).