Supporting, Informing & Connecting People in Foreclosure
The following is just a sampling of the comments and analysis from several different sources. This is the weekend to send out emails, write to newspapers, GET OUT THAT FINAL WEEKEND PUSH!
OPPOSE LEGISLATION THAT HARMS HOMEOWNERS AND FAILS TO ADDRESS THE REAL PROBLEM WITH FORECLOSURES
Do Not Support CS/CS/SB 1890
CS/CS/SB 1890 has the real potential to do more harm than good. More importantly the bill fails to address the real problem – rampant fraud in foreclosure documents.
Provides little benefit to homeowners – Reduction in statute of limitations for deficiency judgments is a hollow branch offered to homeowners. Homeowners may STILL be sued for deficiencies and language in the bill is unclear whether the limitation will apply in all cases. Stripped from the bill where other homeowner protections like enhanced mediation and notice of rights against scammers.
Does not protect against fraudulent documents – Fraud in the documents is allegedly addressed by requiring the banks to file certain documents at the beginning of the foreclosure. But banks are not required to produce the mortgage or its assignments and homeowners will have little opportunity to prove that the documents are fraudulent. The judge reviewing a file in chambers cannot determine robo-signing – creating clear title is not a document-based process.
No opt-out from expedited show cause for homeowners with real defenses – The expedited show cause hearing that any lienholder may request does not allow homeowners who may have defenses to the foreclosure adequate time to address these problems.
Overburdens Florida’s underfunded courts – the show cause hearing will result in an extra hearing for the courts and judges must spend excessive time in chambers trying to read and determine the sufficiency of documents – an impossible task.
Abandonment provisions create a shadow procedure for allowing banks to take over homes – anyone entitled to “enforce” the mortgage may “petition” the court for abandonment without proving actual ownership of the note and mortgage.
Florida has a huge backlog of foreclosure cases because the banks and their attorneys are unwilling to move these cases along. The cases do not move because the banks do not have the documents required, which is what has led to the creation, in many cases, of fraudulent documents. Retroactively allowing condominium and homeowner associations the ability to request a show cause hearing will not cure this problem. Current law, with adequate funding for judges, is the fastest and safest way protect title and get Florida’s real estate market on track.
The order to show cause amendments are touted to expedite the foreclosure process however fail to recognize the need to guard the integrity of the process. We heard many times during the hearings that this section is just to address abandoned property and cases where there was no defense. Unfortunately this is not correct; it applies to all foreclosures and attempts to fix a backlog problem by compromising consumers’ rights when they do not cause the backlog.
Strip consumers’ rights – consumer is required to file a verified or sworn answer (not required now)
If the consumer does file a proper form of a defense this “may” constitutes cause for the court not to enter a judgment
There is no standard for what constitutes “cause” and this process provides no opportunity for the borrower toengage in discovery before trying to establish “cause”
This process is a document-based without standards for when a defendant gets the due process, we have all learned from the AGs’ actions and many court documents are flawed
The documents required by the plaintiff to trigger the show cause process exclude the mortgage and its assignments.
According to the new Section 702.015 the plaintiff needs only to produce the note “and assignments and allonges”. Exclusion of the mortgage and assignments from the pre-requisite of the complaint fundamentally changes the nature of a foreclosure lawsuit, excludes the document upon which the security interest is based and even further lessens the initial burden of the plaintiff and prejudices defendants’ ability to show “cause.”
Generally when show cause proceedings are allowed, the filing of any paper constitutes “cause” or opt outs are available. This proposal provides neither
The backlog in the system is not caused by the current statutory and rule-based process, now if a property is abandoned or there is, otherwise, no response, the plaintiff simply has to file a motion for summary judgment, get a hearing and get a judgment setting a sale date. By adding the show cause procedure you are requiring judicial involvement earlier in the process and, sometimes twice when ordinarily only one hearing would be required. Therefore, you are exacerbating the real problem with backlog which is the overburdened courts.
Also, you are adding another level of plaintiffs, the lienholders, and giving them rights they do not presently have to create more work for the courts (the HOAs and condo associations want this so they can empty out properties more quickly but what they do not realize is that this may give them the right to push cases but they will be getting a property encumbered by a mortgage because the mortgage owner/holder will still be bogged down in the process of trying to get their documents together).
The second cause to the backlog is the failure of plaintiffs’’ attorneys to actively move the uncontested cases through the courts either because they are overwhelmed or because their clients do not have the necessary documents (or create problems for themselves by creating fake ones to fill the void) This bill does not address this problem.
VOTE NO ON CS/CS/SB 1890