An edited version of this post by Roy Oppenheim was first published in US News and World Report’s Home Front Blog and is being redistributed on South Florida Law Blog with their permission.
Any plan designed to speed up the foreclosure process in Florida and uncork the bottleneck of paperwork jamming up the court system may sound like a good idea at first. After all, who wouldn’t want to see the last several years of this foreclosure crisis become nothing more than a distant memory.
But scratch just below the surface of a recent bill introduced in the Florida House of Representatives called “The Fair Foreclosure Act,” and you’ll find a plan that’s anything but—at least for those facing the foreclosure process.
House Bill 87 allows third-party lien holders—such as homeowner associations—to route foreclosures through an expedited process rather than through a typical court proceeding required by Florida law. (Florida is a judicial foreclosure state meaning that all foreclosures have to go through the court system.)
But instead helping distressed homeowners, HB 87 essentially strips them of basic legal rights. The bill acts sort of like Liquid Plumr, pushing foreclosures through the drain and turning the legal system on its head.
Even criminals are considered innocent until proven guilty and given their day in court before they are thrown into jail. Shouldn’t homeowners be given their day in court before they are thrown out of their homes?
Florida State Rep. Kathleen Passidomo, who introduced the bill, would argue that it protects consumers by ensuring that banks and lenders prove they own a mortgage before they can file a foreclosure action.
What she doesn’t say is that the banks will be permitted to provide these certifications and the court will have to accept them on face as being truthful. The onus falls on the homeowner to prove that the banks are not telling the truth.
And to add insult to injury, they are only given 20 days to challenge the bank, hardly enough time to find a lawyer and track down other documentation to prove a wrongful foreclosure.
Missing documents, fraudulent assignments, fraudulent notaries, forged documents—Are we really going to trust the same banks that fueled the foreclosure crisis by creating false documentation in the first place to do the right thing this time?
Sadly, once again, lawmakers are looking to allow the fox to guard the hen house. If HB 87 passes, banks will continue to be allowed to get away with fraud, just as long as they are able.
Real estate attorney Roy Oppenheim left Wall Street for Main Street, founding Oppenheim Law with his wife in 1989 in Fort Lauderdale, Fla. He is vice president of Weston Title and creator of the South Florida Law Blog, named the best business and technology blog by the South Florida Sun-Sentinel. Follow Roy on Twitter at @OpLaw or like Oppenheim Law on Facebook.