Editor’s Note: Matt hits the nail on the head so there is no need to do a whole essay on the problem — just read his piece shown below. The Banks are getting itchy because like the economic crash they see a political crash coming. The Florida legislature is looking to “expedite” foreclosures. Republican controlled it is more likely that the banks will have their way with them — unless you do something NOW!
The whole premise, as Matt points out, is completely wrong. The problems with the pace of foreclosures is not that there are dilatory tactics being used by borrowers. In fact in many cases, it is the borrower who is more aggressive than the forecloser in pursuing an end to the case. The length of time it takes a process a foreclosure is caused by the illegal paperwork submitted by the banks. And the reason why they need to resort to doing something illegal is that they already did something illegal and are trying to cover it up.
If a borrower actually owes money on a loan, it should be clear in any setting how much money is owed to each stakeholder. The Florida legislation ignores this basic premise. AND if the paperwork was procured by fraud in the inducement, fraud in the execution or forgery followed by perjury of a “witness,” then nobody should be surprised why it takes so long. Requests for discovery are met with stonewalling. Before the mortgage meltdown, the lender would have been only too happy to lay down everything in their books and challenge the borrower to admit or deny it.
If it wasn’t for the deficient debts, notes and mortgages, the courts would not be clogged with foreclosures that should never have been initiated. Disclosure of the receipts and disbursements from an identified creditor (and their agents) who has proof of payment and proof of loss would end the foreclosure mess in a flash. But the banks refuse to do that because they can’t come up with a credible injured party with standing and they don’t want to reveal how much they took out of the flow of money advanced by investors in a PONZI scheme.
If you really want to stop foreclosures then pass a law that merely encapsulates what is already law in evidence, procedure, real estate and contracts — identify the creditor, show proof of payment, show proof of loss, proof of default to the CREDITOR and show documents that link up the borrower with the party who is injured.
Proof of loss and proof of payment can ONLY be established by producing a witness providing foundation for a copy of the wire transfer receipt or cancelled check. This is essential unless we are going to have two trials — one whether the foreclosure is valid on its face and the other whether the initiator of the foreclosure is a creditor (injured party) and the extent to which they were injured — or else they can’t submit a credit bid at the foreclosure auction.
If those conditions precedent to filing for foreclosure are required, either the borrower will drop out when those items are produced and alleged in the foreclosure complaint, or the case will not be filed at all. Case Over.
Send your email or letter now and by the way, send a copy to AG Bondi.
Posted by Matthew Weidner, Esq.
Every citizen who cares about justice, public policy and the rule of law should take an interest in what’s happening in Tallahassee.
The Florida House Subcommittee on Civil Justice will hear, and will likely pass, House Bill 87, a bill that aims to speed up foreclosures. CALL THESE MEMBERS NOW AND URGE THEM NOT TO SUPPORT THIS BILL! This bill is wrong for many reasons, but let’s start first with the premise upon which it is founded….a premise which is totally false and misleading:
As a preliminary matter, public policy decisions should not be made relying upon data and information from industry sources, particularly when the methods and meaning of said data is not revealed. In the house report on House Bill 87, they cite heavily to RealtyTrac data and other data which is not properly explained or put into proper context. For instance, the report reads:
The average length of time between the first foreclosure filing and bank repossession is 853 days.
This statement ignores the fact that the primary reason for banks not completing foreclosures is the federal lawsuits into their crimes and wrongdoing and the related holds.
The banks, either because of the litigation or for their own business purposes are reviewing many more files for modification than before and many of the foreclosures that are “stalled” are not moving because the homeowner is in a long term modification. A foreclosure case that has a loan that is in modification will just be “stalled” out, not moving at all in court, but this is not at all reflected in the case progress.
Current law provides for an alternative procedure that is designed to speed up the foreclosure process in uncontested cases or cases where there is no legitimate defense.
This is correct, there already exists an expedited procedure that the banks could use if they chose to….but they are choosing not to….and they cannot be forced to use this process. Currently there are a significant portion of the foreclosure caseload for which the homeowner has not responded. In these cases, a bank could move for judgment and get title in a matter of 60-90 days. Before voting on this bad bill, members should consult with their chief judge and find out what percentage of cases currently pending could be quickly moved to judgment because it is investment or abandoned property or property for which no homeowner has responded to the lawsuit.
If the property is not residential real estate, the plaintiff may request a court order directing the defendant to show cause why an order to make payments during the pendency of the proceedings or an order to vacate the premises should not be entered.
This already exists in statute, but it is not being used. Why add to a statute that the industry chooses not to use? What percentage of current foreclosure filings in a circuit use this process currently and why has it not been used? Why add a companion to this existing if the industry does not use it?
Provides finality of a mortgage foreclosure judgment for certain purchasers of a property at a foreclosure sale while allowing for damages in some instances.
The title insurance industry was more than willing to accept premiums knowing full well that many of their agents were engaging in improper conduct. To allow the title insurance industry to evade their existing contracts and responsibilities to policy holders is misguided. And you cannot replace property which is unique, with any amount of money. This is a backdoor bailout to the title insurance industry and it rewards conduct that was either criminal, reckless or grossly improper.
Amends the expedited foreclosure process to allow all lienholders to use the procedures, instead of just the mortgagee; reduces the number of hearings from 2 to 1; and prohibits service by publication when using the expedited process, unless the property is abandoned.
Only a party who initiates the litigation can make that litigation proceed. There is no way that a junior lienholder can force the primary plaintiff to proceed with their case to judgment if they choose not to. It is the Plaintiff’s case to proceed as it choose, and the existing law and court resources permit them to do so.
Allows any party to request a case management conference to expedite the lawsuit.
Any party to litigation may already demand that a court have case management, and the courts will do so…the court already has resources and the law gives them tools to move cases along. And while a party cannot be forced to take a judgment, a judge can impose sanctions or enter orders that move cases toward resolution…..IF THAT’S WHAT THE PLAINTIFFS WANT!
Defines adequate protections where there is a lost, destroyed or stolen note.
The Uniform Commercial Code, adopted across the United States, and in Florida already provide protections. This is totally unnecessary
Florida has the largest share of foreclosure inventory of any state in the nation, with 305,766 properties in some stage of foreclosure or bank-owned as of the end of 2012.1 Seven of the top 10 highest foreclosure markets in the nation are in Florida, with Palm-Bay-Melbourne-Titusville having the highest rate of foreclosure of any metro area in the nation.2
Foreclosing on a mortgage in Florida is an unusually long process. Florida trails only New York and New Jersey in terms of the length of time between the first foreclosure filing and bank repossession, at 853 days. The national average is less than half that, at 414 days.3.
Relying on all this data from RealtyTrac, which data is not adequately explained and which contains other factors and reasons should be disfavored. Our state policy makers should only rely on data that comes from our judges and from Clerks of Courts.
Upon proper notice of default to the defendant, the mortgage servicer files a foreclosure complaint, which must allege that the plaintiff is the present owner and holder of the note and mortgage, [Editor's Note: what happens if the allegation is made but the borrower denies it?]
Unfortunately, the underlined statement is wrong….the appellate courts across this state have made a disaster of the distinction between Owner and Holder such that it is not uniformly required anymore…this is a major problem….but this legislation does not address this….if the legislation were to change making that element a requirement would be positive
This bill is just wrong in so many ways, and making policy decisions based on flawed, and unclear data just makes no sense….call your representative and tell them to reject the bill.
Email Them Here:
Larry…@myfloridahouse.gov, Bill….@myfloridahouse.gov, Cynthia….@myfloridahouse.gov, Jim….@myfloridahouse.gov,Mike.Clelland@myfloridahouse.gov, Daniel.Davis@myfloridahouse.gov, Tom.G…@myfloridahouse.gov, Jose….@myfloridahouse.gov,Kathleen.Passidomo@myfloridahouse.gov, Jose.Rodriguez@myfloridahouse.gov, Ross….@myfloridahouse.gov,Charlie.Stone@myfloridahouse.gov, Jim.Waldman@myfloridahouse.gov
Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud Tagged: | civil procedure, Florida House Subcommittee on Civil Justice, Florida legislature, foreclosure inventory, House Bill 87, law of evidence, Matt Weidner, payments, title companies