UPDATE- It’s certainly clear that there is a real change occurring in foreclosure courtrooms. First, the banks are clearly moving forward…emboldened in some cases, but also realistic about the realities on the ground. Next, our courts recognize that there will be real strains placed on them, they will be pulled into the vortex of this new reality.
Translated to English, what I think will happen is that homeowners who have experienced counsel and who are prepared to fight, will find a court system that must respond to their demands for due process…..but therein lies the fight….you must be prepared for a real fight. Attorneys and consumers must be prepared to assert their rights in courts….
Today I have a foreclosure trial in Hillsborough County. I spent the entire weekend deconstructing every single aspect of the Plaintiff’s case. Every piece of paper, every bit of evidence they need. Case law. Statutes. Rules of Evidence.
But the reality is, I’m fearful that none of that will matter. This is, after all, a Foreclosure Trial. Now accused murderers, child molesters…they get all those protections forged over hundreds of years in our faded notions of civil justice and embodied in our state and federal Constitutions. But far too often, these same rights and procedures are not provided to a homeowner in foreclosure. There is after all, an alternative set of rules of procedure, evidence, statutes….which is to say that the existing rules of procedure, evidence and statutes that are evenly applied and fairly executed in most other court cases are not applied in foreclosure cases…because after all, the defendant is in foreclosure. Oh, and, the State of Florida has determined that we must
CLEAR THE FORECLOSURE DOCKET!
And the attorney of an accused in a criminal trial will be afforded all the dignity and respect that our nation’s court system demands. The attorney for an accused in a capital criminal case in any far away county can count on the respect, the support, the backing of the United States Supreme Court. Remember that little guy called Miranda? But far too often, not so in foreclosure courtrooms. After all, our nation has made a decision that we must protect The Banks and Wall Street, no matter the cost or consequences for Americans…individually or collectively. No matter the longer term consequences for our nation’s civil justice system.
Those who are in control have largely made the decision that Due Process no longer matters in the context of foreclosure. Oh, a citizen will get process all right…processed right out of the property they rightfully own. An opinion clearly demonstrated with this frenzy to:
“CLEAR THE FORECLOSURE BACKLOG IN FLORIDA!”
And along the way, I fear we’re going to throw the protections all citizens should receive out of the courtroom. Now, again, the bigger question is….what happens to that home after foreclosure? Will this “bad” homeowner be tossed out so that a “good” homeowner will take title to the property and move their family in? Will a local realtor get that listing, market it to a local family and make a nice commission?
No. Based on all the available data, the home will likely either wind up reverting back to the faceless, unproven trust that claims to be the plaintiff, then transferred through circuitous transfers back to some other servicer or, more likely, back to Fannie Mae and Freddie Mac. Later, it might be bundled and sold, in a Fannie Mae Bulk Sale transaction….back to China or an institutional investor.
Or maybe, it will be purchased by one of the few Wall Street hedge funds or shadowy corporate entities that are purchasing the majority of properties at foreclosure auction.
Either one of those, where it might be rehabbed and rented. But it likely will not end up back in the private ownership of an individual who lives here locally.
And that, my friends, is the much bigger issue that no one seems to be paying any attention to.
