Tuesday, July 9, 2013

NEW FLORIDA FORECLOSURE CHANGES – DOES IT AFFECT BROKER ADVICE?

Listen up! If you are facing foreclosure in Destin, Niceville, Fort Walton Beach, Crestview, Santa Rosa Beach, Navarre or anywhere in Florida - there is a new Florida Foreclosure Law.  Attorney Richard Zaretsky breaks it down here. Eventually, you may have less time to sell your property as a short sale. Don't stick your head in the sand and call me at the last minute, before it's too late. Thank you, Richard, for the great article!
If you have a client that has a just filed or soon to be filed residential foreclosure action in Florida, what new timelines can you expect under the new Florida Foreclosure Law?  Effective with all NEW lawsuits filed on or after July 1, 2013 the new streamlined foreclosure procedures law will govern how fast the lawsuit will proceed – or at least that is the theory behind the new law.  Reality can be quite something else.
Under the law as it existed before June 7, 2013 (the date Governor Scott signed the legislation) an uncontested or minimally contested foreclosure action could take about 110 days from start to finish PROVIDED the lender’s attorney did all the things the lender’s attorney could do under Florida’s Rules of Civil Procedure when they could be done.  For example, a foreclosure action usually results in the Lender counsel waiting for the time after service of process of the lawsuit on the defendants and then filing a Motion for Summary Judgment of Foreclosure.  The reality is that most lender counsel don’t jump on getting the Motion for Summary Judgment filed and the Motion then set for a Hearing date until days or weeks after the soonest date one can be requested.  The procedural rules provide that the lender attorney cannot set the Motion for Summary Judgment for hearing sooner than 20 days from the date of the filing of the Motion for Summary Judgment.  Many courts today are have busy schedules, so it may take 30 days to get a hearing, thus creating a 10 day delay. 
Under the law (click here for a copy of the bill) as it will be beginning June 8, 2013, these timelines are supposed to have been changed.  …………
One part of the legislation actually asks the Florida Supreme Court to create an expedited timeline for foreclosures in the Florida Rules of Civil Procedure.  These Rules are created not by the legislature, but by the Florida Supreme Court.  Almost all of the 110 days that I mentioned above are from time requirements set forth in the current Florida Rules of Civil Procedure.  Since the legislature cannot change those timelines, it has asked the Florida Supreme Court to do so.  So the changes in the entire procedure in Florida are not over yet and there is actually no real “EXPEDITED” in the new law – at least not for now!
Some changes that will affect borrowers:
Deficiencies
The existing deficiency law allows a lender to pursue a deficiency as late as anytime before 5 years after the foreclosure sale date.  The revision now states that any deficiency judgment must be sought within one year from the foreclosure sale.  Further, in the case of owner-occupied residential property, the amount of the deficiency may not exceed the difference between the judgment and the FMV as of the date of the sale. There is also a rebuttal presumption that a residential property for which there is a homestead exemption is an owner-occupied property.
Finality of Mortgage Foreclosure Judgment
Presently, if a mortgage foreclosure judgment and sale is set aside, the title reverts to the borrower.  Under new Fla. Stat. 702.036 any action to set aside, invalidate, or challenge the validity of a final judgment of foreclosure or to re-establish a lien or encumbrance is relegated only to monetary damages if certain conditions are met: 1) proper service, 2) final judgment was to the property, 3) appeals periods have run, and 4) a non-affiliated third-party bidder purchased the property. The statute then goes on to address the rights of the true owner/holder when that final judgment is received via a lost note affidavit.
Lost Note Affidavits
Fla. Stat. 702.015 is created to address a lost note affidavit for residential loans by requiring threshold requirements in the initial pleadings.  The complaint must contain affirmative allegations as to it holding/owning the note and its entitlement to enforce them. Further, in the alternative, the complaint must contain allegations as to how the right to sue was delegated to the plaintiff if it is now the owner/holder. Lastly, contemporaneously with the complaint, a plaintiff must file a certification regarding the original note. In addition, when the complaint is filed a plaintiff must file its lost note affidavit.
Lost Note Indemnification
A big deal is the new indemnification requirement.  This is important because the prior law did not have any baseline standard for the lender guarantying to the borrower it would AND COULD defend any claims that someone else held the promissory note.  Fla. Stat. 702.11 is created to state lost note indemnification means 1) a written indemnification agreement, 2) a surety bond, 3) a letter of credit, 4) deposit or cash collateral,  or 5) other security the court deems appropriate.
Timelines
The new timeline for an expeditiously lender attorney handled residential foreclosure I think will remain the same – for now!  Until the Florida Supreme Court creates new “expedited” rules of procedure, I do not see the timeline changing under the new law.  I will stick to my 110 day start to finish timeline that I proposed years ago – that can still work today.  See FORECLOSURE PROCESS FINISHED IN 100 DAYS?  BUT - now you say that most realtors say that foreclosures take years, not weeks.  Although it is true that there are foreclosures that have taken since 2008 to get resolved in 2013, that was the result of situations and forces that no one could have predicted (and no one did predict that log jam scenario, further aggravated by a moratorium on filing foreclosures, another delay no one predicted).  Timelines are based on technicalities but they are subject to the vagaries of human conduct, mostly caused by distraction and personal priorities.  Lately we hear of foreclosures taking 5 months in Florida.  That's 150 days and close to the technical line of 110 days, so reality and possibility are becoming aligned.   My experience is getting away from the major population centers creates a courtroom atmosphere were there are far fewer pending cases and thus fewer delays both from excess work vs. available time, to simply the number of pending cases.  Whatever the reason, now more than ever your clients need to understand the race of the FORECLOSURE EXPRESS VS. LITTLE ENGINE THAT COULD .

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© 2013 Richard P Zaretsky, Esq.

Be sure to contact your own attorney for your state laws, and always consult your own attorney on any legal decision you need to make.  This article is for information purposes and is not specific advice to any one reader.

Richard Zaretsky, Esq., RICHARD P. ZARETSKY P.A. ATTORNEYS AT LAW, 1655 PALM BEACH LAKES BLVD, SUITE 900, WEST PALM BEACH, FLORIDA 33401, PHONE 561 689 6660  RPZ99@Florida-Counsel.com - FLORIDA BAR BOARD CERTIFIED IN REAL ESTATE LAW - We assist Brokers and Sellers with Short Sales and Modifications and Consult with Brokers and Sellers Nationwide!  Shortsales@Florida-Counsel.com  New Website www.Florida-Counsel.com

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