Foreclosure Defense Florida

Fatally Flawed Foreclosure Bill Passes Legislature….Appeal is Underway.

Everyone makes mistakes.   You. Me. Even our courts.   When judges make mistakes, they have broad discretion to undo those mistakes…and they undo those mistakes quite often.   No harm, no foul….just undo the Order and start again.
This is a fundamental element of American Jurisprudence that is deeply rooted in our legal tradition.
But the Florida Legislature, when they passed their ill-advised foreclosure legislation completely ignored that bedrock principle, when the passed “foreclosure reform” with the so-called, “Finality of Foreclosure” provisions.
When a judge enters a Final Order of Foreclosure, completely by mistake.   Let’s say an Order with a completely wrong address on it or a completely wrong defendant name or for a case where the homeowner and bank have entered into a settlement….neither the judge, nor the plaintiff nor any party can undo that mistake.
And so what is absolutely, positively, certainly going to happen is innocent Floridians are going to lose their homes through mistake, inadvertence, error and there will be nothing in the world that anyone can do to undo that mistake. At least according to the corporate-controlled Florida Legislature.   This section, the so-called, “Finality of Foreclosure” was a gift to the title insurance industry.   The title insurance industry has been more than willing to accept premium dollars over decades knowing full well that corners were being cut, mistakes were being made….crimes of omission and commission were being engaged in….but continued to accept those premiums anyway.   And now with this legislation, they are given near certainty that they will never pay out any claims on those premium dollars collected because the remedy that is substituted for the current law of undoing a final judgment for mistake, converting that claim to one for money damages really does not exist.   There will be no claim for money damages on properties that have mortgages on them.
And so the appeal will be filed.   We will alert the court to the fact that the legislature has overstepped their boundaries and fatally interfered with the inherent power of the judicial branch to set rules and procedures to protect itself and to protect litigants.   In this case, that fundamental power is the court’s power to undo its own errors under Fl.R.Civ.Pro.1.540(b). But that’s just one section of the appeal.
The next section of the appeal will deal with the conflict that exists in the new legislation and the Federal Protecting Tenants in Foreclosure Act.   This federal law prohibits a tenant from being evicted from a property as a result of any state court foreclosure proceedings.   In Florida’s new law, a tenant could be IMMEDIATELY EVICTED when a plaintiff files a motion with the court.   Heck, the first time a tenant would know this has happened is when the Sheriff comes to drag them out of the home.
The abuse of tenant rights and the violation of federal law is wrapped up in another of the most disturbing aspects of the law….the requirement that defendants in a foreclosure lawsuit pay the plaintiffs in the lawsuit as a condition of defending their case in court.   That’s right.   According to the provisions of this new law, if a citizen of this state wants to defend his rights in a court of law, he will first have to make payments directly to the plaintiff that is suing him.   Oh, by the way, you know that class of defendants…….don’t you?
It’s the criminal banking cartels that admitted (most) of their crimes and wrongdoing in a set of recently agreed to settlement agreements.   Not only have we rewarded the criminal banking cartels in those agreements, this legislation rewards them even further by allowing them to extort money from consumers as a condition of making their case in court.
Yes, The Florida Legislature, in their infinite wisdom has made the banks the gatekeepers of who may access Florida’s courts to seek justice…




  • Jon Klurfeld says:

    While I agree the bill is ridiculous in its terms, and this finality rule should be overturned as unconstitutional, I have to disagree with the statement that it will prevent fixing errors such as Defendant names, or towards a judgment entered in error per settlement in most cases.
    Correct me if I’m wrong, but I believe that this finality rule only goes into effect once there is a sale conducted; then one cannot go back after the sale.
    Honestly, maybe this will cause some of the “bad” foreclosure defense lawyers (we all have heard of them) who take way too many clients due to greed, or have their staff do 99% of the actual work, to actually do their job more fully and be attentive to detail.
    There should be ample time between judgment and sale to catch mistakes if defense lawyers are diligent in 90% or more of the time. Most mistakes are made by not being attentive to detail and merely tossing the judgment in the file after calendaring the sale date.

  • Neil says:

    “Just one more nail in the coffin for the homeowners.”
    What happened! The foreclosing party needs to prove to the courts they were financially damaged. If the banks had to prove they paid for the rights to even initiate a foreclosure, not that “were the holder of the note and mortgage”, but that they were actually damaged financially or that the borrowers loan by the pretend lender was actually a different party, which in actuality were the Investors, which the courts are stripping their rights with no recourse.
    Since the securitized bullshit started, it is now game on.The courts are not familiar with and have no way to readdress cases since the legislators have made it clear with funds that the courts need to run without being influenced are being manipulated in favor of the foreclosing party.
    There needs to be a “TOTAL SEPARATION” between Legislators and the Courts or the people will suffer. The Legislators are supposed to be there for the people, aren’t they?, but it sure seems like they they have a personal interest in the corporate foreclosing party. Sham on all parties that allow this to perpetuate into something of a horror story.

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