Florida Supreme Court
Task force hopes to standardize management of excessive foreclosures
Florida Supreme Court task force on home foreclosures plans to propose uniform case management and design a model mediation program to deal with the glut of foreclosure cases tying up the state’s legal system.
In an interim report released this week, the task force said uniform statewide solutions are needed “to avoid a patchwork of independent and confusing requirements.” But the task force is short on details, making it difficult for those working on foreclosure cases to comment on the proposals.
“At this point, it’s a little uncertain how things are going to proceed other than we expect some time in August to have a final recommendation from this task force,” said Fort Lauderdale attorney Eric Schwartz, who represents licensed mortgage lenders.
The 14-page report plus attachments notes the obvious: mortgage foreclosure filings have exploded. In three years, state courts have seen filings increase by 400 percent, and Florida has the fourth highest foreclosure rate nationally.
But instead of receiving increased infrastructure or funding, the court system has suffered cutbacks as the economy plummeted, and judges are juggling a backlog.
Supreme Court Justice Barbara Pariente said the court must try to balance the interests of lenders and borrowers when drafting a plan, and she emphasized the need for statewide standards.
Pariente, who had not seen the report when she was interviewed, said she does not know what the answer is but knows it’s important that the process be efficient and guarantee each borrower who wants a day in court can have one.
She also knows task force recommendations won’t make everyone happy.
“We’re studying it. We hope to be proactive to create a statewide order,” Pariente said.
The 15-member task force chaired by Miami-Dade Civil Administrative Judge Jennifer Bailey voted to design an alternative dispute resolution program for foreclosures that would be considered by the state’s high court. The program would be limited to cases filed in court because judges lack jurisdiction over other disputes.
The task force plans to offer recommendations that would be cost-effective and affordable while staying consistent with existing laws and policies. A pending issue is the “clarification of legal and ethical obligations of circuit judges in hearing uncontested securitized mortgage foreclosure cases.”
Homeowner defense attorney Roy Oppenheim of Oppenheim Pilelsky in Weston seized on that point, claiming the constitutional rights of distressed homeowners may be sacrificed at the hands of overworked judges.
“Why do we need clarifications if judges are really, really doing their jobs?” he asked. “It’s saying in a nice way that judges are not fulfilling constitutional obligations to protect those people not represented by counsel.”
On Sunday, the Sarasota Herald-Tribune reported foreclosure lawyers for lenders are giving false statements in court and the lies and errors are slipping past overworked judges.
The task force created nearly two months ago by Chief Justice Peggy Quince to assess whether the court system could find more efficient ways to handle foreclosures plans to deliver a final report Aug. 15.
Bailey said the goals of case management and alternative dispute resolution are to ensure cases that can settle do so early to avoid clogging courthouses.
Bailey compared the court system to a highway running at maximum capacity.
“With foreclosure cases, it’s like that highway during a hurricane evacuation in a rainstorm with two lanes closed for construction because of the budget cuts that have affected the court system,” she said. “Our job is to create off-ramps for those cases … and try to keep the traffic moving because it’s not just affecting foreclosure cases. It’s affecting every case filed.”
Whether mediation would be mandatory or case specific is still being debated. Miami-Dade County opted for mandatory mediation last month after a circuit court in the Florida Panhandle did the same.
Bailey said the task force is developing criteria for what would be subject to alternative dispute resolution.
The task force also is trying to determine where the court process breaks down and how to better move cases. It could propose administrative orders and forms to use statewide.
The biggest complaint is a lack of communication between the two sides, Bailey said. The task force intends to provide the circuits with a uniform set of forms that also would give circuits flexibility.
“Coming up with one static plan that doesn’t allow for any ingenuity would be unintelligent,” Bailey said. “The idea is to come up with a basic plan that we would build on that’s relatively uniform throughout the state.”
The task force is soliciting public input but won’t hold any public hearings because of time and budget constraints.
Oppenheim called the lack of public hearings “garbage.”
“It’s the biggest problem to hit Florida in 50 years, and they’re not going to have public meetings,” he said incredulously.
If mandatory mediation is recommended, Oppenheim said he would want lenders to pay for it to ensure everyone has their day in court.
“I really get a sense that our judicial system has become a gigantic collection agency for the banks,” he said. “There definitely needs to be some creativity and some oversight here.”
Schwartz of Weitz & Schwartz in Fort Lauderdale would be happy to see uniformity among circuit courts, saying the hodgepodge of administrative orders around the state makes it difficult for practitioners who work in a variety of jurisdictions.
But he wants mediation to be addressed on a case-by-case basis.
“It takes two to tango, and oftentimes we have files where the defendants are totally unresponsive and are not living at the property any longer,” Schwartz said. “To have [mediation] applied in those types of circumstances would be a waste of everyone’s time and money.”
He advocates having procedures in place allowing parties to request mediation. He opposes Miami-Dade Circuit Court’s policy requiring lenders who file homestead residential foreclosure actions to pay $750 to the Tallahassee-based Collins Center for Public Policy for mediation in addition to foreclosure filing fees.
In a speech last Friday in Fort Lauderdale, Pariente worried the public would stop “seeing courts as protectors but facilitators for the powerful.”
Bailey said the task force is trying to put together the best system for what is “fundamentally a problem that extends so far beyond what the court system is designed to respond to. There are community stabilization issues, huge economic issues, homelessness issues, job issues, mortgage fraud issues, bank regulatory issues, most of which is outside our control. We’re just where the buck stops,” Bailey said.
“The really hard work is now ahead,” Schwartz acknowledged.
Jordana Mishory can be reached at (954) 468-2616.