Posted on May 6th, 2013 by Mark Stopa
Back in 2011, I posted this blog, encouraging homeowners to stay current on their association dues. That’s even more important now.
You see, under the new legislation just passed in Florida, an association can request an expedited foreclosure hearing to try to accelerate the bank’s foreclosure case. If you’re current on your association dues, the association probably won’t feel a reason to make this request. If you’re behind on those payments, however, you run the risk that the association will cause that hearing to be set. Just think about it from the association’s perspective. If you’re paying your dues and taking care of the house, they probably don’t care if the house is in foreclosure. If you’re not paying your dues, however, then the association likely prefers that you get foreclosed so a new owner – who pays his dues – will get put in the house.
Don’t let a rather nominal association payment cause you problems on your mortgage foreclosure case. Pay those dues!
Mark Stopa
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Posted on May 6th, 2013 by Mark Stopa
You probably know by now that HB87 passed in the House and the Senate and will become law unless Governor Rick Scott vetoes it, which is not expected. This legislation changes the landscape of foreclosure defense in some significant ways. Let’s summarize (bearing in mind that this is purely a summary and there’s no substitute for knowing the precise language of the new bill or, better yet, hiring an experienced lawyer who does):
1. Finality of Judgment: Once a final judgment is entered in a mortgage foreclosure case, the property is sold to a third-party, and the appeal time has run, the mortgagor is precluded from getting title to the property back, even if the foreclosure was wrongful. Instead of being able to ask for the judgment to be vacated under Fla.R.Civ.P. 1.540 up to a year after the judgment was entered – or, in some circumstances, many years post-judgment – the homeowner’s remedy is now limited to claims for money damages.
For obvious reasons, the title insurance industry was the driving force behind this aspect of the bill. After all, if homeowners can’t make claims to get their foreclosed properties back, that’s a green light for title insurance companies to issue title insurance policies without fear of paying out claims.
2. Order to Show Cause: Expedited Foreclosure: Any lienholder (to include condo associations and homeowners’ associations) can ask the Court to issue an Order to show cause, forcing the homeowner to come to court and convince the Court not to enter an expedited foreclosure judgment. If the homeowner doesn’t file the appropriate paperwork/defenses, a foreclosure judgment is entered at that hearing. This sounds bad, but it’s similar to the existing version of Fla. Stat. 702.10, except it now enables any lienholder (as opposed to just the bank) to request the show cause hearing.
The condo and homeowners’ associations were the driving force behind this aspect of the bill. They believe this will give them leverage to accelerate the mortgage foreclosure lawsuit when the bank is slow to prosecute the case. Are they right? My thoughts are below.
3. Order to Show Cause: Monthly Mortgage Payments: If a residential property is not owner-occupied, the plaintiff can ask the court to require the mortgagor to make normal monthly mortgage payments to the plaintiff during the foreclosure case. If those payments are not made, then the mortgagor is removed from possession of the property even before the case is over. If this happens, the homeowner can still defend the lawsuit, but will be removed from possession before the case is over.
4. Statute of Limitations: On claims for deficiency, reduced to one year.
5. Pleading requirements: The new bill imposed a few new pleading requirements for plaintiffs.
(a) The foreclosure plaintiff must plead it is the “holder” or its specific factual basis to foreclose in its Complaint. This codifies what defense attorneys have been arguing in motions to dismiss for many months – it’s not enough to say you’re entitled to foreclose, you have to plead ultimate facts.
(b) If the plaintiff is suing on behalf of another entity, it must identify the document which sets forth that authority.
(c) The plaintiff must file a certification under oath, upon filing suit, that it possesses the original Note. If the note is lost, it must file an affidavit detailing the chain of assignments/transfers and must attach documents showing how ownership was acquired.
My thoughts:
I’ll spare you my rants here – of which there are many – about the process in which this bill was enacted and the small handful of people who drove the train. Instead, I’ll share my views on how these issues will play out in everyday practice.
1. Finality of Judgment. I hate this provision, and I think it’s unconstitutional. After all, the Florida Supreme Court has the exclusive authority to create rules of practice and procedure in our courts, and it did so via Fla.R.Civ.P. 1.540. If that rule allows/requires a Final Judgment to be vacated even after the appeal time has lapsed, I don’t think the legislature is authorized to eliminate that Rule. That said, this provision won’t impact very many homeowners. Defend your case from the outset, file an appeal if you lose, and you won’t ever be in the position of having to worry about whether Rule 1.540 applies. Let’s move on.
2. Order to Show Cause: Expedited Foreclosures: On paper, little has changed here. Fla. Stat. 702.10 has been in place for some time now, yet the banks rarely utilize it. On the rare instances they have, I’ve had a lot of success preventing the expedited foreclosure from being granted. Frankly, it’s not too hard, if you know what you’re doing. As a result, I don’t think much will change by allowing lienholders to invoke this procedure.
What irks me is that the backers of this bill have no clue how this change will play out in everyday practice. It may sound great to some to allow a lienholder/association to request an expedited foreclosure hearing. However, suppose that happens, yet the bank doesn’t file the required paperwork for a judgment to be entered. Then what? Bear in mind, this type of thing happens all the time – an association wants a foreclosure case to go faster, but the bank refuses to prosecute the case … so it’s not hard to envision a lienholder/association pushing for an expedited hearing but the bank not filing the necessary paperwork at that hearing. Unfortunately, the statute poses no solution to this problem. The lienholder/association can cause the hearing to be set, and the court will be required to set the hearing, but how can a judgment be entered if the bank doesn’t provide the required paperwork? It can’t. That begs the question – why allow the expedited hearing, forcing the judges and court personnel to do more work and requiring homeowners to defend the expedited procedure, if there is no mechanism for making sure the required paperwork is filed?
I tried to address these concerns with the legislature. In fact, I drafted a proposed amendment to the bill which would have allowed the foreclosure case to be dismissed without prejudice if the show cause hearing was set and the bank didn’t file the required paperwork. Was that included in the final version? Of course not. As a result, I fear we are looking at many hearings where the association wants a case to go forward, but it cannot because the bank doesn’t file what it needs to file … a sad irony when the purpose of the bill was to make things easier for the courts.
3. Order to Show Cause: Monthly Mortgage Payments: Substantively, this is the biggest change. If you don’t live in your property, and you’re the mortgagor, the bank can force you to make monthly mortgage payments during the pendency of the case, failing which you lose possession of the property.
A couple of things are infuriating about this aspect of the bill. First, do you notice how the homeowner is required to make monthly mortgage payments to the plaintiff even before the case is over, yet there is nothing in the statute which requires those payments to be given back to the homeowner in the event the homeowner prevails at the end of the case? Suppose, for example, a homeowner makes 12 monthly payments of $2,000 per month, then, at trial, proves the bank lacked standing to foreclose. Shouldn’t the homeowner get his $24,000 back? Of course! Incredibly, however, this brilliant piece of legislation is silent on this issue. Seriously, Legislature? The wrong plaintiff can sue, collect monthly payments, and not be obligated to return those payments upon losing the case?
The sheer idiocacy of this aspect of the bill is obvious by comparing it to the tenant eviction statutes. If a tenant makes monthly rent payments into the court registry, then ultimately prevails against the landlord, the court orders that the money in the registry be returned to the tenant. Here, conversely, there is no mechanism in the statute for the homeowner to get his/her money back, even upon prevailing. The money isn’t held in the registry – it’s paid directly to the plaintiff, and there’s nothing which says the plaintiff has to pay the money back. I guess the legislature was too arrogant, shortsighted, or ignorant to realize a homeowner could win a foreclosure case at trial. Sigh.
Second, it’s an awful irony that the associations were supposedly the impetus behind this aspect of the bill, yet they don’t realize they were shooting themselves in the foot by creating it. Just think about the dynamics at play here. If the homeowner doesn’t live in the house but is paying association dues, the dues are likely being paid with rent monies. That’s how it works – homeowners rent out the property and pay HOAs with that rent. If that rental stream gets taken away from the homeowner, do you think there’s a chance in hell he/she is going to keep paying the association? I don’t. And the banks sure aren’t going to pay those associations, as their obligations to the associations are limited by statute. So what will result here? Unpaid associations and more vacant/dilapidated houses. Brilliant! Just brilliant.
My plea:
There are a variety of reasons why this new legislation is probably unconstitutional. I touched on one or two of them above. However, I strongly urge all pro se homeowners to avoid making such arguments. Please. Don’t do it.
Look … I’ve shared a lot of information on this website. I hope it goes without saying that I want to help everyone involved in this fight. This issue, however, is too big for any one homeowner to take on themselves. The problem, of course, is that if the wrong person is making this argument without knowing all of the legal arguments to make and/or how to make them, it can result in an appellate decision that is damaging for everyone. Please, folks – don’t ruin this for everyone. Let the handful of foreclosure defense lawyers who know what they’re doing work with some lawyers with experience arguing constitutional issues. We know what arguments to make and how to make them try to get this legislation declared unconstitutional. You don’t. This is a big fight, and we can win, but we have to go about the fight the right way.
Mark Stopa
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