Florida Supreme Court Listens! Banks Must Play Nice in Mediation
Banks behaving badly? Florida homeowners can look forward to new and improved mediation behavior from the banks! We are happy to report there is a new set of rules for banks and the Florida Supreme Court finally started listening to Roy Oppenheim ‘s messages with regard to sanctionable conduct by the banks during mediation!
A recent South Florida Law blog pointed out a number of issues that Oppenheim has addressed on numerous occasions.
Now we’re glad to report the Supreme Court has made amendments to Florida Rule of Civil Procedure 1.720 (Mediation Procedure). One of the concerns mentioned by Oppenheim was that the banks were acting in bad faith during mediation. This is particularly true when authorized representatives had no real authority to settle during mediation.
As Oppenheim previously mentioned in a recent Palm Beach Post article, “You have someone on the phone from the bank and the only thing they have is a computer monitor in front of them and the only thing they can do is modify,” he said. “It’s not mediation; its modification or bust.”
The new mediation procedure now demands that the lender representative have “full authority to settle.” What this means is that the party representative has to be the final decision maker without needing to make further consultation during settlement matters and must have the “legal capacity to execute a binding settlement agreement on behalf of the parties.”
This revision to the mediation program will allow for the mediation process to run more effectively by encouraging banks to reach settlement agreements with borrowers. There is at least a chance, even if remote; that a settlement can be reached because the party representing the bank will be able to have the final word on whether or not to settle.
The amendment further ensures that the party representative will have full authority to settle by requiring each party to file a written notice with the court 10 days prior to any meeting that the parties attending have the required authority.
The new provision in the Mediation Procedure will push the banks to follow these new requirements because if the parties fail to confirm with the court on their authority to settle or if that party with authority fails to appear at mediation, the party representative could face possible sanctions for failure to appear. These sanctions include mediation fees, attorney’s fees, and other costs for failure to appear.
These changes will go into effect January 1, 2012.