Foreclosure Defense Florida

Lenders Not Acting in Good Faith Should be Denied Foreclosure

Courts must be reminded that courtrooms are courts of equity

By both statutory order and case law, foreclosure proceedings are actions in equity.   See Fla. Stat. §702.01 (2009) (providing, in pertinent part, that ” [a]ll mortgages shall be foreclosed in equity.” Bold emphasis added); Swan Landing Development, LLC v. Florida Capital Bank, N.A., 19 So.3d 1068, 1072 (Fla. 2d DCA 2009) (providing that ” [f]oreclosure of a mortgage is an equitable remedy”).   See also, Singleton v. Greymar Assocs., 882 So.2d 1004, 1008 (Fla.2004); Smiley v. Manufactured Hous. Assocs. III Ltd. P’ship, 679 So.2d 1229, 1232 (Fla. 2d DCA 1996).

Historically, equitable courts developed to provide a forum of justice for litigants when law courts, which contained rigid principles and restrictive technicalities, were deficient.   See Hedges v. Lysek, 84 So. 2d 28, 31 (Fla. 1955).   As such, equity courts were created to do justice between the litigants.   See e.g. Banks v. Shaw, 144 Fla. 550, 198 So. 341 (1940); Atlantic Nat. Bank of Jacksonville v. Simpson, 136 Fla. 809, 188 So. 636 (1938).   Therefore, ” a court of equity is a court of conscience; it should not be shackled by rigid rules of procedure and thereby preclude justice being administered according to good conscience.”   Demorizi v. Demorizi, 851 So.2d 243, 246 (Fla. 3d DCA 2003), appeal dismissed 851 So. 2d 168 (Fla. 3d DCA 2003) (quoting Wicker v. Board of Public Instruction of Dade County, 106 So.2d 550, 558 (Fla.1958)).   Finally, with respect to foreclosures, ” the general rule in Florida is that”¦[the] foreclosure must not be unconscionable or inequitable.”   Pezzimenti v. Cirou, 466 So.2d 274, 276 (Fla. 2d DCA 1985).

Analysts expect a “Barrage of Deficiency Judgments”, another factor that advocates and judges should consider as they focus on dealing with this foreclosure crisis.   Even foreclosure cases that have been concluded, may be resurrected by Plaintiffs years down the road as they try to collect on these deficiency judgments.   The very same defenses that exist in foreclosure cases exist in these deficiency cases, along with many others, but it is critical that consumers retain qualified and experienced counsel to deal with these issues at the front end and sooner rather than later.


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