I was pleased to join in with the finest foreclosure attorneys in the state to weigh in on these most important issues:
The undersigned attorneys have represented hundreds homeowners in
foreclosure in Circuit Courts throughout Florida. As such, we appreciate the
efforts of this Court and The Florida Bar’s Civil Procedure Rules Committee to
interpret the 2013 legislative changes to the foreclosure process. The undersigned
also participated in advocating for homeowners during the 2012 and 2013
legislative process. We take this opportunity to raise issues with certain aspects of
the proposed Rules that will conflict with the stated purpose of the Legislature to
“expedite the foreclosure process by ensuring initial disclosure of a plaintiff’s
status and the facts supporting that status, thereby ensuring the availability of
documents necessary to the prosecution of the case.”
Foreclosure is an equitable remedy.5 Nevertheless, many written foreclosure
opinions in the past few years simply state, without analysis or careful
draftsmanship, that establishing oneself as a holder of the note under Article 3 of
the UCC is sufficient proof of standing to foreclose—as if the UCC applies to
nonnegotiable instruments such as mortgages. In reality, the plaintiff must also
prove itself to be the mortgagee to prevail on its claim in equity to enforce the
mortgage lien. While it appears that the litigants in these cases never raised the
fact that the foreclosure of a lien is an entirely different kind of action than the
legal action for enforcing a note (i.e. obtaining a money judgment), this Court
should not adopt a rule that forever abolishes the courts’ equitable jurisdiction
which governs the taking of homes from the citizens of this state. The Court
should jealously guard this power given that there exists a deeply-rooted public
policy of promoting and defending home ownership—a policy that has found
expression in the Florida Constitution’s homestead protections.
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