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Homeowner Rights in Florida Foreclosures Tossed to Wayside

The Florida Supreme Court recently struck down a city ordinance allowing a municipal government to initiate foreclosures on “abandoned” properties before banks, while the recently-passed House Bill 87, which rests now with Gov. Rick Scott, would essentially allow the same thing.

Our Miami foreclosure lawyers understand that both of these options, intended to speed the processing of the state’s glut of foreclosures, make the rights of homeowners a secondary concern.

The first involves a case out of Palm Bay, City of Palm Bay v. Wells Fargo, NA. The question in this case was whether, under Article VIII, section 2(b) of the state constitution, section 166.021, and the Florida Statutes laid forth in Chapter 162, a city has the authority to enact an ordinance asserting that its own code enforcement liens could be considered superior to those of prior-recorded mortgages. Ultimately, the high court decided no, affirming an earlier decision by the state’s Fifth District Court of Appeals.

In nullifying the ordinance, the Florida Supreme Court stated that the ordinance was in direct conflict with the statute.

One can sympathize with Palm Bay’s efforts, however, given that the primary goal had been to initiate foreclosure proceedings on properties that banks were failing to maintain and allowing to fall into disrepair – blighting neighborhoods. In some cases, the banks were (and still are) declining to pursue foreclosure even after evicting the homeowner, in an effort to avoid responsibility for those local government liens.

But meanwhile, House Bill 87, which also has the ultimate intention of fast-tracking Florida’s foreclosures, awaits a signature – or veto – from Gov. Rick Scott. This measure, supported by banks and mortgage services, bypasses due process for homeowners in an effort to speed the process. It reduces the amount of time a bank has to proceed with a foreclosure from five years to one year.

It also allows a third-party lien-holder, such as a homeowners’ association or, yes, even a municipal government, to initiate foreclosure proceedings.

What is most troubling, however, is that it expedites the process by mandating that a judge immediately review any and all foreclosure filings in chambers without a hearing and before asking the parties to show cause for why a final judgment should be entered. This would allow the judge to quickly enter a final judgment if it’s believed that the homeowner lacks an adequate defense. But think about it: When is the lender going to jump to the defense of the defendant borrower, when the lender is the one to initiate the proceedings in the first place?
The homeowner could request a hearing from the judge if he believes he has a case. But the burden of proof would suddenly be placed on the shoulders of the defendant, not the plaintiff – upending the entire judicial process as we know it.

As Sen. Darren Soto, R-Orlando, was quoted as saying, Florida remains No. 1 in the country fore the sheer number of foreclosures, and apparently the best solution we can come up with is to kick people out of their homes faster.

This is the third time a bill like HB 87 has been proposed, but this is the farthest it’s ever gone, with the Senate voting 26-13 to pass it. The measure has been sitting on Gov. Scott’s desk ever since, awaiting his decision. A spokeswoman for the governor has said only that his office intends to review it.

Opposition to this measure remains strong, and it’s unclear which decision Scott will make.

One potential saving grace is that with the state Supreme Court decision in the Palm Bay case, the provision of third-party initiated foreclosures may be enough to challenge HB 87 in future court cases, should it become law. However, that could prove a long, uphill battle.

Our best shot at this point is to convince Gov. Scott that this is the wrong move for Florida. To contact Gov. Scott’s Office, you may e-mail him by clicking here, or you may call his office at (850) 488-7146. The governor needs to hear from you. Make your voice heard.

If you’re battling foreclosure in Miami or the surrounding areas contact Jacobs Legal for a confidential appointment to discuss your rights. Call (305) 358-7991. Also, don’t miss Miami Foreclosure Attorney Bruce Jacobs on 880AM/the Biz, every Wednesday from 5 p.m. to 6 p.m. on “Mortgage Wars,” discussing foreclosure topics that matter to YOU.

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