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June 1, 2013
Plan in place to work foreclosure backlog

By Gary Blankenship
Senior Editor

Florida courts will soon have more money and a new law to attack the state’s backlog of mortgage foreclosure cases, assuming Gov. Rick Scott signs the two measures passed by the Legislature.

	Rep. Kathleen Passidomo In the closing days of the session, lawmakers approved a bill designed to speed the handling of foreclosures, overriding the concerns of critics that it might shortchange homeowners with legitimate defenses and not address the real cause of languishing foreclosure cases.

They also okayed spending more than $40 million for senior judges, court staff, clerks of courts, and legal aid assistance for low- and moderate-income homeowners facing foreclosure. All those expenditures were made toward cutting the state’s backlog of more than 350,000 foreclosure cases.

As both chambers considered the legislation, it nearly died in the Senate. Although it passed the House on April 29 by an 87-26 vote, the fate of its counterpart in the Senate appeared questionable when it had not been taken up in the Appropriations Committee, the bill’s final committee of reference.

In an unusual procedure, it was withdrawn from the committee and taken up on the Senate floor on April 30, amended to match the House bill, and then finally passed on May 2 by a 26-13 tally.

Both chambers saw unsuccessful amendments to change a provision of the bill that limited recoveries by homesteaded homeowners if fraud by the lender had been involved in their foreclosure. If those homes had been purchased by “innocent” third parties, then the original homeowners were limited to recovering only monetary damages from the lender; they could not get the home back.

The amendment would have allowed the original homeowner in those cases to get the house back. Rep. Mike Fasano, R-New Port Richey, pushed that amendment in the House and Sen. Darren Soto, D-Kissimmee, championed it in the Senate.

“Imagine that you made all your payments on your mortgage and there was a mistake made or fraud and you actually lost your house,” Soto said. “If this law passes without this amendment, you won’t be able to get it back.”

Rep. Kathleen Passidomo, R-Naples, sponsor of the House bill, said in addressing Fasano’s amendment that many of the foreclosed homeowners don’t want the homes back even in cases involving fraud, because the homes would come with the previous mortgage and liens that the homeowners had been unable to pay.

“We discussed this issue extensively in a couple of the committee stops,” Sen. Jack Latvala, R-Clearwater, and the Senate sponsor, said on Soto’s amendment. “One of the provisions we are trying to have in this bill is finality. The innocent purchaser would be protected. . . . You can’t have your home taken away from you. The bill provides that instead that person who was foreclosed on wrongly has a right to monetary damages only and they can still go after whoever perpetrated the fraud.”

Sen. Nancy Detert, R-Venice, argued Soto’s amendment would create more victims and that those who had been foreclosed, even if the procedure was in error, had defaulted on their mortgages.

“Under your amendment we would have more victims because your people would win a case and throw out people who are timely payers, who in good faith bought a [foreclosed] house,” she said.

Latvala, who praised Passidomo for pushing the legislation for the past three years, explained during the Senate debate what the bill would accomplish:

* It cuts the statute of limitations for banks to seek a deficiency judgment against a foreclosed homeowner from five years to one year. The amount of the deficiency would be limited to the difference between the amount received in the foreclosure sale and the fair market value of the house at the time of the sale, not the amount of the original mortgage.

* Lenders filing foreclosures face heightened standards for filing papers that show they have the right to foreclose. That portion of the bill came in response to the “robosigning” scandal where lenders were found to be fabricating documents and signatures in a rush to process foreclosures. “It eliminates the fraud . . . that has resulted from robosigning practices of the past,” Latvala said.

* Show cause hearings in foreclosure cases will use the summary judgment standards to speed the resolution of foreclosure cases, and at those hearings defendants will have to claim a specific, allowable defense to forestall the foreclosure. Critics of the bill said defendants would have inadequate time to conduct discovery, noting in other civil cases summary judgment comes well into the case and after discovery. They also said that under current law, foreclosure defendants only have to claim that they have a defense without specifying what it is to delay the foreclosure. Passidomo and other supporters said that has led to abuses where defaulting homeowners fabricate defenses to stay in their homes while not paying the mortgage.

* Homeowner and condominium associations with liens on unpaid property assessments will be able to seek a show cause hearing if the lender does not.

* “Innocent” third parties who buy foreclosed homes cannot be divested of those homes if that foreclosure was later found to be fraudulent. Instead, the original owner will be limited to collecting monetary damages from the lender or party responsible for the fraud.

The legislation produced sharp debate both in committee and on the floors of the two chambers. Proponents contended that the bill was needed to attack the backlog of cases and help quickly move those cases while protecting homeowners.

Critics said it rewarded banks which had flooded the courts with faulty paperwork and limited the ability of homeowners to defend a foreclosure. They argued that there would be no untimely delays if banks filed the proper paperwork and pursued cases instead of letting them languish.

The issue split Bar members, with the Real Property, Probate, and Trust Law Section supporting the legislation and a coalition of attorneys who defend foreclosures opposing it. Some citizen and consumer groups also opposed the bill, claiming it was too easy on banks that had abused the foreclosure process.

The bill becomes effective when signed by the governor or 15 days after it crosses his desk if he decides to let it become law without his signature.

Whatever the effect of the new law, lawmakers signaled their desire to reduce the number of foreclosure cases in the court system when they dealt with more than $200 million the state received through Attorney General Pam Bondi’s participation in the National Mortgage Settlement. Lawmakers, outside of the regular budget, appropriated about $40 million for addressing foreclosures.

The Office of the State Courts Administrator broke down the authorized spending:

* It includes $16 million for the courts to pay for increased use of senior judges, general magistrates, and case managers to help dispose of foreclosures. Another $5.3 million was allocated to the state courts system to pay for technology to help handle foreclosures. Those monies can be spent over two years.

* A total of $9.3 million is designated for county clerks of courts to help courts with foreclosure paperwork.

* Another $10 million is set aside for legal aid agencies to help low- and moderate-income homeowners threatened with foreclosure.

[Revised: 03-03-2014]