The New Glacial Pace of Foreclosure Law

The following article is written and authored by Roy Oppenheim, Oppenheim Law for Yahoo! and republished in The South Florida Law Blog.  All rights reserved.

I have always used the word “glacial” as a term to describe something that moves incredibly slowly.  Most glaciers move at a pace that is so slow, the movement is invisible to the naked eye and requires a time lapse video to be recognized.  The typical glacier makes a snail’s pace seem like Usain Bolt.

However, on a recent trip to Alaska I learned that some glaciers have brief “surges” that advance the glacier forward at a rate of up to 300 feet in a moment’s notice, and nearly 100 times faster than normal.  Surges can last a few months.  Many factors in nature combine to cause the surge, and once they have balanced out the surge ends and then the glacier returns to its normal speed of something a little less Bolt-like.

Floridian Glaciers?!

I never thought I would see anything here in Florida that even slightly resembled a glacier.  As it turns out I was wrong.  Florida has its very own glacier right here, and it comes in the form of foreclosure jurisprudence.

Foreclosure law has long been regarded as one of the slowest areas of jurisprudence to change in Florida as well as in the rest of the U.S.  Yet, within the last few years since the foreclosure crisis began, real estate law has been the subject of much turbulence and change.  House Bill 87 and the Rocket Dockets combined as a force of nature, causing a glacial surge right here in Florida as far as foreclosure law is concerned.

The Florida Legislature has given assistance to the courts in an effort to surge foreclosures through the system via House Bill 87, which provides several provisions for ways in which to accelerate the foreclosure process.  The provisions allow for a jump-start to foreclosures and an expedited foreclosure process.  For instance, once a lender files a foreclosure action, the homeowner has only a couple of weeks in which to raise a valid defense.  A victorious lender must seek its deficiency judgment against the homeowner within one year following the foreclosure, where the former rule was that they had five years.  Each of the provisions is meant to lead to faster rulings on foreclosure cases than the 900-day average currently in place.

The Future Glacial Pace in Foreclosure Law—Snail or Bolt?

All of the changes to foreclosure law in Florida leave many unanswered questions.  There will likely be legal and constitutional challenges to the new law and I believe that ultimately this law will end up causing further delays in the foreclosure process.  At that point, the surge will end and maybe we will be back near the old glacial pace with which this state and the rest of us have been so familiar.

Real estate 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.