The Florida Bar
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May 15, 2013
Letters

E-filing
I have been filing documents using the e-portal to existing cases for some time, with only a modicum of problems. However, since April 1, I have had to file new cases using the e-portal. Here is my experience. I have taken several short courses on using the e-portal and thought I was ready.

The first new case took almost five hours to file. I tried calling the help line, got a message that they would call back — that was two weeks ago and I have not received a reply yet. The first screen says, “For more information, click on the ‘help’ link.” There is no help link.

The screen to add parties is different for each county, so I quickly got confused as to who goes where. One county requires an attorney, another does not. One requires a party be shown as “filed on behalf of,” another does not. After several tries with this, I just put in what I thought would suffice and moved on, when it let me.

Then I went to the “add documents screen.” Since each county has a different screen and different names for documents, this took a while. I now take the same attitude: I will do the best I can, label the documents with whatever seems right, and move on. The next problem was the one that threw me off for several hours. Apparently, when you press “save,” you must wait for the document to actually upload, even though it looks like it has. Otherwise, you get an error message and cannot move on. The upload takes two parts. I found the first part was shown by an activity symbol for the website. The second part is when it can be viewed. Each part took from five to 20 minutes for each document. I learned all this the hard way. Now when part one is done, I assume it’s right and move on.

After learning the above lessons, I can now upload a new case in 30 – 60 minutes, depending on the speed of the document upload, the number of pages to be uploaded, and if I ignore being able to view the documents before moving on. This compares to the fact that the documents would be ready to mail to the clerk before I started, and does not include the scanning time. Under the “old” method, this would take approximately 10 minutes to put the documents in an envelope with a check. Welcome to the new technology.

Bruce Hoffman
Gainesville

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I do not know if anyone else has used the state’s e-filing system yet, but I find it to be dreadful.

Filing documents takes my secretary five minutes per case. I can only imagine what the big law firms are in for — they will probably have to hire several people to keep up.

I am all about using technology to make lives easier, and more than willing to help the clerks out (and save on postage), but it seems that the e-portal could have been designed a lot better. Why doesn’t the state design an email server with an email address to which we could just CC our Rule 2.516 pleadings, which would parse those emails and send the PDFs to the appropriate clerk’s office?

Ryan Peterson
Hialeah

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I hope the Bar recognizes how generous members are when we respectfully request they disclose the logic behind the decision not to include Visa as a method of payment on the e-filing website.

Eric Ash
West Palm Beach

(Editor’s Note: The Florida Bar had no involvement in the creation of the statewide Internet portal for e-filing. The decision not to accept Visa was made in the fall of 2010 by the Florida Courts E-Filing Authority Board, which chose to go with Discover, Mastercard, and American Express to allow a variable in rates between credit cards and ACH (Automated Clearing House) payments. According to the authority board, Visa rules prohibit any differences in fees between the use of cash and credit cards. Portal credit card transactions are subject to a 3 percent charge and ACH transactions incur a $3 fee. If the authority had decided to accept Visa, then all ACH transactions would have been subject to a 3 percent charge, possibly subjecting lawyers to higher costs for e-filing.)

Civil Litigation Risk
Civil litigation lawyers need to know about a new and inconspicuous legal malpractice risk to which they are routinely exposed.

For the past 26 years, rejecting a settlement offer in a civil action might result in the statutory sanction of paying the offeror’s attorneys’ fees and costs under F.S. §768.79. A judgment for fees and costs can potentially create a financial crisis even for those parties insured for the underlying cause of action, because many policies either don’t cover such sanctions or the policies’ limits become insufficient to pay them. Case law generated by the applicable statutes and civil rule has kept us scratching our heads about how to effectuate or avoid such sanctions. Consequently, our duty to sufficiently advise our clients about those issues has remained a challenge from the start.

Now, that duty seems to be expanded. An insurance company has begun insuring litigants, plaintiffs, or defendants with a stand-alone policy for the payment of those sanctions. In my opinion, the availability of that insurance obligates us to inform our clients about it when they have been served with a Rule 1.442 “proposal for settlement.”

Reginald E. Wilcox
Vero Beach

Foreclosure
In the letter of response by the Real Property, Probate and Trust Law Section (authored by Wm. Fletcher Belcher, chair), the section asserts, in its paragraph #5, that the “bills would give additional certainty and protection to good faith purchasers for value who acquire foreclosed property after the final judgment of foreclosure by providing that the title to the property cannot be later challenged.”

Contrary to the assertions, a purchaser of a distressed property, particularly one that has been sold through judicial sale, is hardly a “good faith purchaser for value.” This legal term of art only applies to the innocent purchaser, who has no knowledge of any potential issues affecting title. Certainly, any purchaser of a foreclosed property is already on notice that the property may come to them replete with liens and encumbrances, not the least of which are unpaid assessments to homeowner or condominium associations. Thus, potential buyers must use due diligence before purchase. The section’s good faith purchaser has no protection from the claim by the association, nor can such purchaser hide behind the limitation law (limiting assessments to 12 months) presently enjoyed by the lenders who acquire title. In any case, I cannot see why we would be encouraging legal short cuts to assist an industry that put us in this situation.
Perhaps a better solution is to allow the industry to regulate itself through better underwriting practices, and allow them to fund the foreclosure litigation by charging higher filing fees. But the more I read the bill, I can only think that the real thrust is to assist associations which do not choose to foreclose their liens, but instead allow the unpaid assessments to accrue. Since so many of them have “lost” funds by being unable to collect all assessments from the lender, after the lender acquires title at judicial sale, the associations have to find a new means to move the process along.

Foreclosures certainly are a problem, but hastily conceived new laws seem to be an inappropriate remedy.

Kevin McNamara
North Palm Beach

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It is important that in its present form neither the House nor Senate version of the “Speedy Foreclosure Bill” (SB 1666 and HB 87) should pass, nor is there any overwhelming reason to change substantially the procedure currently set forth in the current statute.

A significantly large number of lawyers — and legislators who are lawyers — in this state are not admitted to practice in other states that have “non-judicial foreclosure” or “executory process,” or if they are, it is highly unlikely that they ever practiced there. If they did, it is unlikely that they practiced in the area of residential property finance and remedies. Accordingly, for the most part they are unaware of the method and practice of lenders and their agents during the course of a residential foreclosure. As one who is admitted in one of those other states — and has practiced in that state — let me advance a clear opposition to fooling with the foreclosure statute. Leave it the way it is.

Firstly, I posit that “speedy foreclosure,” at least as done in Alabama, Georgia, Louisiana, and Texas, is derivative of not only 5th (“[no citizen shall be] deprived of life, liberty, or property, without due process of law. . .” and 14th (“[no] state [shall] deprive any person of life, liberty, or property, without due process of law. . .”) U. S. amendment rights, but it is also a denial of the rights of Floridians under Article I, Section 21 of the Florida Declaration of Rights and Freedoms (“The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial, or delay.” Due process, at its very minimum, is “notice, and the right to be heard.” Speedy foreclosure eliminates any modicum of due process.

Secondly, any foreclosure that can be accomplished purely and simply by posting a notice at the courthouse and sending a certified letter “to the last known address” allowing 21 days to bring the mortgage current lacks due process. Or in the alterative, by running into the courthouse to find a judge to render a “show cause” order based upon a confession of judgment in the note, impermissible in Florida, also lacks due process. The burden of raising defenses is shifted to the mortgagor by requiring him to commence litigation to enjoin the foreclosure and raise those defenses at considerable expense for counsel and filing fees. That, too, patently violates the concept of due process.

The landowner has trouble paying the mortgage, then, in all likelihood, he cannot afford defending an action which violates the precepts announced in both the federal and state constitutions. The remedy is to disallow financial institutions the opportunity to disguise their lack of judgment in lending in the first place, or to clean up their books and cover up their fraud, malfeasance, and incompetence in the name of judicial efficiency. The statues should show them the hoops, and require the proper jumping therethrough before they can deprive a Floridian of the constitutionally protected property right he has in his homestead — or the one he has sought to acquire.

Thirdly, in the recent financial debacle, many banks and lenders doing business in this state revealed their lack of concern for their customers, their intent to satisfy regulators at any expense, and their total disregard for and contempt of the judicial process and system when they hired — and failed to properly supervise — unethical foreclosure factory law firms and their “robo-signer” employees in the latest round of economic adjustment.

Accordingly, the passage of SB 1666 and HB 87 by the Florida Legislature will not only fail to require the highest level of integrity from the lenders and their minions, but it will also allow the proverbial fox access to the henhouse. The lenders of this millennium have not proved they are that honest, scrupulous, and virtuous.

Dave Woodward
Pensacola

Lawyer Advertising
We are used to shouting car commercials on TV, but now we have shouting lawyer commercials! “Law firm got Joe $1.5 million! How much can we get you?”

When I became a lawyer, it was unethical to advertise at all. But the Supreme Court changed that. I thought the Bar could still review the ads and impose some ethical standards. Apparently not.

I am embarrassed by such blatant ambulance-chasing and don’t know how to explain this to friends who ask, “Can anyone help?”

C. Pfeiffer Trowbridge
Stuart

[Revised: 07-16-2014]