On Friday, June 7, 2013, Governor Rick Scott signed Florida House Bill 87 into law which takes effect immediately. This law affects all outstanding mortgages and pending and future foreclosure lawsuits in Florida courts on Florida residential properties. Its main “purpose” is to provide an expedited foreclosure process.
Here is a brief summary of the new law’s provisions.
- The time period for which an entity may sue for deficiency against a residential property, defined as one to four units, has been reduced from five years to one year. The limitations period begins to run the day after the certificate of title is issued or the day after a bank accepts a deed-in-lieu of foreclosure.
- Any lawsuit to foreclose on residential real property, filed after July 1, 2013, has to contain certain allegations along with a new signed certification. This provision should be helpful in defending a case. The allegations must by “made by the plaintiff at the time the proceeding is commenced that the plaintiff is the holder of the original note secured by the mortgage; or allege with specificity the factual basis by which the plaintiff is a person entitled to enforce the note under s. 107 673.3011.” The certification “must set forth the location of the note, the name and title of the individual giving the certification, the name of the person who personally verified such possession, and the time and date on which the possession was verified. Correct copies of the note and all allonges to the note must be attached to the certification.
- In certain circumstances, a person whose home was wrongfully foreclosed may not sue to get their home back.
- There is an “Order to Show Cause” provision which can happen rather quickly, depending on the method of “service” of the lawsuit. Any lien holder (the Plaintiff, a bank, an HOA, a condo association, etc) may request the court for an order to require the homeowner to prove why a judgment should not be entered against them. The judgment under this section cannot be for money. Rather, it can only be for real estate. In order to defeat this process, a homeowner must file certain papers which raise a “genuine issue of material fact.”
- For any property that is not occupied by the owner, the Plaintiff in the case may request a court order requiring the property owner to prove why they should not have to make payments during the court proceedings. If the court determines that the Plaintiff is likely to prevail, the court will enter an order requiring the borrower to pay the amount of money, as was required under the mortgage, prior to the lawsuit. If the borrower fails to make these court ordered payments to the Plaintiff, then the Plaintiff is entitled to take possession of the property.
- There are new provisions for Plaintiffs in regards to providing adequate “protections” for those being sued based on lost, destroyed, or stolen notes.
The above is not meant to be an overview of the new law but rather a quick summary. There are numerous loopholes and issues in this new law which we do not address on this post.
It remains to be seen if the banks and their foreclosure lawyers will comply with the mandatory provisions of the law or use the optional ones, as well, how Judges will interpret its ambiguities. The law’s intent was to make foreclosures easier and faster for Plaintiffs, but it may just backfire and cause a lot of problems for foreclosure mills and their clients. Just over a week after the Governor signed the bill into law, we wrote and filed the attached Motion, asking the judge to throw out a Plaintiff’s previously obtained Show Cause Order or, at the very least, deny the Plaintiff’s request for judgment for a number of reasons.
If you are in South Florida and are looking for help with debt, foreclosure, student loans, real estate or want more information about bankruptcy law, call us at (754) 400-5150 or fill out our online form for a FREE CONSULTATION. Let the lawyers and staff at the Law Offices of Evan M. Rosen serve you!
Motion to Quash and Memo in Opposition