Florida’s Fair Foreclosure Act: It’s only fair until it’s your home

Florida’s Fair Foreclosure Act: It’s only fair until it’s your home

For the third time in the last three years, our elected officials introduced a bill designed to fast-track foreclosures in the state of Florida. With robo-signing and the filing of fraudulent documents still fresh in our minds, I wonder if making things easier for the banks, the ones who created this mess, is the best way to address the real problem.

Foreclosure Act Property GuidingThe proposed law, HB 0087, better known as the Fair Foreclosure Act, makes some recommendations that seem like a good way to unclog the foreclosure backlog in Florida. Some of the proposed changes are, in my opinion, probably needed. One of which is that it would reduce the 5 year limit on seeking a deficiency judgment to 1 year. Also, it requires lenders to file the original note or certification that they have the note and lays out specifics of what must be done if the lender has “lost” the note.  However, some of these proposals are already required and/or have no real practical effect.

Below are some problems with HB 0087.

Retroactive Application to Existing Cases

Ex post facto laws have always been forbidden under the Florida and federal constitution.  HB 87 will change that and allow current cases in litigation to be subject to a new legal standard that did not exist when the case was filed.

Burden of Proof Shifted to Defendant Homeowners

The Plaintiff in all lawsuits has the burden of proof to substantiate its allegations.  Never before has a law placed the burden on a defendant to prove that it should not be liable.  Imagine the lunacy of a defendant having to prove his innocence in a capital murder case.  Under HB 87 this would change and banks would not have to prove up their case as they do now.

Safe Harbor Provided for Lender Mortgage Fraud

HB 0087 makes foreclosure judgments final.  This usurps the role of appellate courts and provides safe harbor for foreclosures procured through fraud. Victims of a fraudulent foreclosure will never get their home back.

Homeowners Have to Pay Payments into Court Registry to Maintain Defense

For non-owner occupied homes, owners must pay contested mortgage payments into the registry of the court, even if the bank cannot prove it owns the home, in order to assert defenses.  This amounts to a denial of due process and a use tax upon the courts.

Judges Can Ignore Homeowners Evidence

Already handicapped by the burden shifting, judges would now be free to disregard record evidence presented by a homeowner and enter a foreclosure judgment.

I urge every Floridian to read the proposed legislation, do some research of your own, and make an informed decision as to what is best for the residents of our state. If you agree this legislation is not in our best interest, then contact your representative and let your voice be heard. Let them know that any reform to the foreclosure procedures should benefit the homeowners, not the banks. Enough is enough.

By its very nature, this is a generalized discussion, not intended for any particular set of facts.  By no means does this blog create an attorney-client relationship or attorney-client privilege between the attorney and the readers. The law frequently changes as new cases are decided and published regularly. Anything relied upon in this or any blog, is done so at the readers own risk.

VERNON W. GUIRGUIS, ESQ.
The Guirguis Law Firm, PLLC
1423 S.E. 16th Place, STE 204
Cape Coral, Florida 33990
239.573.9939 Telephone
239.603.6965 Facsimile

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Posted on March 13, 2013, in Legal and tagged , , , , , , , , , , , , , , . Bookmark the permalink. Leave a comment.

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