| Florida's New Foreclosure Rules | |
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| Tweet Topic Started: Feb 12 2010, 01:28 PM (1,661 Views) | |
| sdsgo | Feb 12 2010, 01:28 PM Post #1 |
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Special Interest Item: The numbers are staggering and the process is out of control. Justices adopt Fla. foreclosure mediation rules By BILL KACZOR Associated Press Writer TALLAHASSEE, Fla. -- Lenders will be required to pick up the tab for investigating and verifying ownership and then try mediation before foreclosing Florida home mortgages under new rules approved Thursday by the Florida Supreme Court. The rules are designed to help Florida's judicial system better cope with a flood of foreclosures. They follow a December administrative order by Chief Justice Peggy telling local judges to adopt a uniform mediation program. Florida has the nation's fourth-highest foreclosure rate. Almost 400,000 cases were filed in Florida's courts last year. The rules and corresponding legal forms were proposed by a pair of Florida Bar panels. "They found that many cases were being filed by plaintiffs that didn't' own the mortgages any more," said Miami lawyer Mark Romance, who chairs the Civil Procedures Rules Committee. Romance said other cases were being filed against people who no longer owned the homes. "I don't think there was any ill will or intent to harm someone," Romance said. The investigate-and-verify rule should help prevent those kinds of errors and give judges greater authority to sanction lenders who do make false allegations, the justices wrote. "It's just going to be another hoop to jump through," said Anthony DiMarco, executive vice president for public Affairs for the Florida Bankers Association, which opposed that provision. "It's making us find a document we're already supposed to find." The decision was unanimous except for a rule that will require prior approval of a judge before a foreclosure sale can be canceled. Justices Charles Canady and Ricky Polston dissented. Last-minute cancelations have needlessly delayed other sales, again clogging the system, Romance said. The Bankers Association did not object to that provision, but DiMarco said borrowers and lenders often cannot reach a settlement until just before the sale date. "It's the last chance and people get more serious at the last chance," he said. Story Link |
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| sdsgo | Feb 12 2010, 02:17 PM Post #2 |
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Supreme Court of Florida ____________ No. SC09-1460 ____________ IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE. ____________ No. SC09-1579 ____________ IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE - FORM 1.996 (FINAL JUDGMENT OF FORECLOSURE). [February 11, 2010] PER CURIAM. In case number SC09-1460, the Task Force on Residential Mortgage Foreclosure Cases has proposed an amendment to Florida Rule of Civil Procedure 1.110 (General Rules of Pleading) and two new Forms for Use with Rules of Civil Procedure. In case number SC09-1579, the Civil Procedure Rules Committee has proposed amendments to form 1.996 (Final Judgment of Foreclosure) of the Forms for Use with Rules of Civil Procedure. We have consolidated these cases for the purposes of this opinion. We have jurisdiction. Case No. SC09-1460 By administrative order on March 27, 2009, the Task Force on Residential Mortgage Foreclosure Cases (Task Force) was ―established to recommend to the Supreme Court policies, procedures, strategies, and methods for easing the backlog of pending residential mortgage foreclosure cases while protecting the rights of parties.‖ In re Task Force on Residential Mortgage Foreclosure Cases, Fla. Admin. Order No. AOSC09-8, at 2 (March 27, 2009) (on file with Clerk of the Florida Supreme Court). The recommendations could ―include mediation and other alternate dispute resolution strategies, case management techniques, and approaches to providing pro bono or low-cost legal assistance to homeowners. Id. The Task Force was also specifically asked to ―examine existing court rules and propose new rules or rule changes that will facilitate early, equitable resolution of residential mortgage foreclosure cases. Id. In response to this charge, the Task Force has filed a petition proposing amendments to the civil procedure rules and forms.1 After submission to the Court, the proposals were published for comment on an expedited basis. Comments were received from Legal Services of Greater Miami, the Florida Justice Institute and Florida Legal Services, Inc; the Housing and Consumer Umbrella Groups of Florida Legal Services; Legal Services of North Florida, Inc., and North Florida Center for Equal Justice, Inc.; the Florida Bankers Association; Florida Default Law Group; Ben-Ezra & Katz, P.A; Thomas H. Bateman III and Janet E. Ferris; Henry P. Trawick, Jr.; and Lisa Epstein. Oral argument was heard in this matter on November 4, 2009. Upon consideration of the Task Force’s petition, the comments filed and responses thereto, and the presentations of the parties at oral argument, we adopt the Task Force’s proposals with minor modifications as discussed below. First, rule 1.110(b) is amended to require verification of mortgage foreclosure complaints involving residential real property. The primary purposes of this amendment are (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded ―lost note counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations. <snip> APPENDIX RULE 1.110. GENERAL RULES OF PLEADING (a) [no change] (b) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third-party claim, must state a cause of action and shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the ultimate facts showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which the pleader deems himself or herself entitled. Relief in the alternative or of several different types may be demanded. Every complaint shall be considered to demand general relief. When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement: ― Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief. (c) - (h) [no change] http://www.floridasupremecourt.org/decisions/2010/sc09-1460.pdf |
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| Carolyn says | Feb 12 2010, 06:16 PM Post #3 |
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If my pitiful memory serves me correct, didn't a delinquent home owner in Florida recently have his house given to him FREE because the bank did not have the paperwork to prove that they held the mortgage? It appeared that the original mortgage was sold by the home owner's original bank to a second bank which then sold it to a third who sold it to a fourth, etc., until it finally landed up in the possession of the current bank that sought to foreclose the delinquent home owner. When the home owner went to court and demanded that the current bank hand over paperwork that proved they owned the mortgage, the bank was unable to do so. (Apparently the paperwork had gone through so many hands that it simply was lost somewhere along the line.) Thereupon, the judge awarded the house free and clear to the delinquent home owner. Is my crummy memory correct? Edited by Carolyn says, Feb 12 2010, 06:17 PM.
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| sdsgo | Feb 12 2010, 06:39 PM Post #4 |
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Carolyn, Not Florida but on target. "Daily Business Review, writer Vesselin Mitev reports that Suffolk County, N.Y. Judge Jeffrey A. Spinner, has judicially canceled the mortgage on homeowner Dana Yano-Horski’s home. The action was taken to sanction the lender’s “Unconscionable, vexations and opprobrious conduct” in its attempt to foreclose on the property." Details ----- Miami Homeowner Not So Secret Weapon to fight Foreclosure - The lost note defense. October 30, 2009 Posted In: Fighting Back By Bruce Jacobs on October 30, 2009 2:16 AM | Permalink Miami and South Florida homeowners fighting foreclosure or upside down on their mortgage may have a way out. Judges around the Country are holding banks trying to foreclose to their burden. TILA, HOEPA, RESPA are words Banks don't want to hear. Many judges have lost patience with lenders. The days of a quick foreclosure sale and whopping deficiency judgment have changed some. A strong defense to foreclosure can make the difference in avoiding financial ruin. You need qualified counsel with prior bank experience to fight for you. Barakat, Jacobs & Associates are trial lawyers who negotiate from strength. The law in Miami, Coral Gables, Kendall and Pinecrest is the same throughout South Florida and NY - The bank has to prove they own the note to foreclose. In October of 2009, New York Bankruptcy Judge Robert D. Drain held PHH Mortgage failed to meet its burden to foreclose on a home in White Plains, and wiped out the $461,263 mortgage debt on the property. The pen is mightier than the mortgage, especially when applied to a court order. The reason for the result: if the lender can't prove ownership of the promissory note, borrowers have leverage, and "may even be able to stay in their homes mortgage-free." Securitization is the reason notes have gone missing since the housing boom. Large pools of bank loans were bundled and sold to scores of investors. However, no one was watching the henhouse and the notes, were never adequately tracked or recorded. In some cases, that means nobody truly knows who owns what. According to a transcript of the Sept. 29 hearing in the White Plains case, The Bank's counsel said: "In the secondary market, there are many cases where assignment of mortgages, assignment of notes, don't happen at the time they should. It was standard operating procedure for many years." Judge Drain rejected that argument, and ruled he had "more than 50 percent doubt that if the debtor paid this claim, it would be paying the wrong person." Details |
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| kbp | Feb 13 2010, 04:20 PM Post #5 |
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I won't waste any time reading more on the matter, but a read of the rule pasted above resembles legislation from the bench. |
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| sdsgo | Feb 14 2010, 08:10 PM Post #6 |
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To understand the change to Rule 1.110(b), you must first understand the implications of Rule 1.030, Nonverification of Pleadings. “Except when otherwise specifically provided by these rules or an applicable statute, every written pleading or other paper of a party represented by an attorney need not be verified or accompanied by an affidavit.” Innocent people were being hurt by foreclosure mills out to turn a quick buck. Florida judges were virtually powerless to hold unscrupulous attorneys who submitted shoddy and sometimes fraudulent complaints to account for their misdeeds. The inclusion of the following lines to Rule 1.110 simply promotes what the Carrington et al plaintiffs in the Lacrosse case call “accountability”. “When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement: ― Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.” |
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