The following article was written for HousingWire by Kerri Ann Panchuk on June 18, 2013, and is being republished in the South Florida Law Blog with comments from real estate and foreclosure defense attorney Roy Oppenheim .
When Florida’s Governor Rick Scott signed House Bill 87 – the so-called foreclosure Rocket Docket bill – he had no idea he was opening another can of worms and potentially giving foreclosure defense attorneys more tools in their arsenal to delay foreclosures.
The bill was passed into law to deal with Florida’s drawn-out and troublesome foreclosure process. HB 87 aimed to streamline the foreclosure process, enacting reforms at the legislative level to jump-start foreclosures and expedite the process in one of the states hit hardest by the foreclosure crisis. (Click here to read more about the changes).
But while the bill has created procedural demands that challenge attorneys on both sides of a foreclosure, the bill itself could ultimately fail in its quest to speed up foreclosures in Florida, says foreclosure defense attorney Roy Oppenheim with Oppenheim Law.
Along with the many procedural changes, Oppenheim says the bill built in a series of potential constitutional violations that a foreclosure defense attorney could easily utilize as a tool to aid homeowners when challenging a foreclosure.
“They have given us new quivers in our satchel to use against the banks,” Oppenheim told HousingWire. “There is ambiguity, and it’s created confusion.”
Oppenheim says opportunities for constitutional challenges are scattered throughout the bill—namely in the fact that there is an allocation of judiciary responsibilities to the legislative branch in some cases. In addition, potential property rights issues are peppered throughout the bill, creating potential due process, equal protection or illegal takings claims under the Constitution. Other parts of the bill are retroactive, which is another constitutional issue, Oppenheim said.
Allowing retired judges to continue to serve within the rocket docket system is also an issue the bill creates, Oppenheim wrote in a blog.
“The allowance of the retired senior judges to continue to serve in their capacity also is a constitutional question, it allows such judges to basically continue to serve while not facing either re-election or re-appointment as required by the Florida constitution,” Oppenheim explained. “Thus, it should be a very interesting next two years to see how the judicial branch responds to these changes.”
Oppenheim says many parties wanted the bill to address their specific interests, but the big winner was the title insurance industry.
Homeowners, lenders and homeownership associations, on the other hand, may suffer from the bill’s squishy construction, Oppenheim suggests.
“There is some sloppy draftsmanship,” he explained when discussing how HOAs had hoped the bill would clean up and expedite foreclosures. But Oppenheim adds, “They may not be able to foreclose until a bill is filed to clean up some of the bad draftsmanship.”
In the meantime, the gloves are on. Oppenheim is confident foreclosure defense attorneys in Florida are seeing opportunities in a bill that was supposed to close the door to endless legal issues involving foreclosures.
Real estate attorney and foreclosure defense attorney, Roy Oppenheim left Wall Street for Main Street, founding Oppenheim Law along with his wife Ellen in 1989 in Fort Lauderdale, Florida, and 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.