This very bad bill is coming up…call senators this week…contact information here
The Foreclosure Reform Bills Ignore Mortgage Lender Admissions of Wrongdoing
Banks have admitted to a broad range of crimes and improper practices in prosecuting mortgage foreclosures over an extended period of time; abundantly evident from settlement agreements with federal and state officials, the Office of Comptroller and Currency Settlement and the 49 State Attorney General Settlement. Legislators cannot ignore these admissions of wrongdoing and existence of an institutional culture of lender fraud, which demonstrates a compelling need for additional consumer protection. HB 87 and SB 1666 awards lender misconduct with faster foreclosures and less due process for consumers.
Proposed Legislation Encourages Entry of Judgment in Pending Foreclosure Cases Tainted With Forged, False and Fraudulent Documents
Banks have admitted to preparing and using forged, fraudulent and faulty paperwork to obtain foreclosures throughout the U.S. and in Florida. In fact, banks declared their own moratoriums due to the widespread fraud in their foreclosure processes. Indeed, many of the cases that are now pending in Florida courts are tainted with these very deceptive and faulty documents. Florida courts and citizens have been victimized by this unprecedented assault on the integrity of our state’s legal system and HB 87 and SB 1666 promotes allowing this deception to anchor judgments to be entered in current foreclosure cases. The finality provision of HB 87 further rewards the deception and without any opportunity for review even where fraud has been discovered.
Foreclosures Were Slowed Down Because Our Existing Foreclosure Laws Work
Foreclosures slowed down because fraudulent plaintiff’s practices became impossible to ignore and were checked by existing Florida law. Neither current Florida law nor our courts caused the slowdown in closing foreclosure cases. Our courts are doing their job. At a time when other states are enacting laws to protect consumers, Florida does not need faster foreclosures, but rather a properly funded judicial system and to hold wrongdoers accountable. These bills do neither.
Florida’s Existing Foreclosure Laws Already Permit Rapid Prosecution of Foreclosure Cases
The stalled foreclosure cases are not moving because the plaintiffs choose to not to move them. Their motivations flow from settlement agreements for their own wrongdoing; because they are in voluntary modification agreements; or, because the banks simply do not want title to the properties. Banks are content with owners in possession as their free property managers. One undeniable fact is that a foreclosing plaintiff can move a case along can do so under existing laws.
Florida’s Constitution Demands Elected Circuit Court Judges, Not More Senior Judges
The Florida Constitution demands that Circuit Court judges face the will of the voters every six years. Senior judges are not subject to retention and Florida citizens are deprived of important Constitutional Rights by installing a permanent regime of judges who are not accountable to citizens. Senate Bill 1666’s move to install a permanent senior judge regime will bring an immediate series of lawsuits challenging the proposed law’s Constitutionality and it should be rejected. Without the continuity of the same judge for the entire pendency of the case, borrowers face incomplete piecemeal adjudication. Foreclosure judgments entered by these senior judge regime will be challenged for years upon a finding that this law was enacted in violation of the Florida Constitution.
The Proposed Legislation Will Not Force Unwilling Plaintiffs to Move Cases
It is beyond argument that the current pace of foreclosure case progress is caused primarily by the plaintiff who filed the cases and not by homeowner defenses, lack of diligence by courts or failure of our existing laws. The current legislation cannot force plaintiffs who do not want to move foreclosure cases along to more quickly prosecute their claims. The argument that this proposed legislation will allow condo and homeowner associations to move cases to judgment more quickly is simply not true. If the plaintiff does not present the evidence it needs to obtain judgment (note, mortgage, records, evidence), then no court can enter any judgment.
Condominium and HOAs can already force plaintiffs to move cases under existing laws and rules. Any party named in a lawsuit may move, at any point in time, for a hearing and demand that the presiding judge order the parties to move a case forward or do anything else that the court demands. Indeed, condo and HOAs are already moving cases forward using these procedures. Importantly, nothing in the proposed legislation will give condos or HOAs any additional rights than they already have under existing law and rules.
Florida Courts Are Already Clearing the Foreclosure Backlog
As a direct result of the settlements, Florida foreclosure courts are already laboring under explicit quotas, targets, requirements that they clear a specified number, (tens of thousands) of foreclosure cases. Effective February 2013, courts across this state are moving to meet these unprecedented demands. In fact, right about the time the 2013 legislative session draws to a close, newspapers and outlets across the state will be reporting on the progress of the unprecedented docket clearing. The direct result of the docket clearings will be tens of thousands of foreclosure final judgments and sales and resulting Writs of Possession, forced evictions, executed by the Sheriffs of the state.
The Foreclosure Reform Bills Represent an Impermissible and Unfunded Mandate on Florida’s Courts
The mandatory show cause provisions in the current proposed legislation could force Florida’s judges to ignore all other cases and focus exclusively on expediting foreclosure cases. It promotes and activates an impermissible legislative intrusion into the judicial branch and places additional burdens on our state’s already underfunded court system with an unfunded mandate.
The Senate Version of Foreclosure Reform Removes Publication
Under existing foreclosure law, foreclosure notices are published in local newspapers, alerting consumers and citizens to actions against their property. The proposed Senate bill would remove that requirement and allow publication in online sources. Many citizens, who do not have access to online sources would lose due process protections of notice.