Foreclosure Defense Needs a Courtroom: Movement to Take Judicial Review From Foreclosure Process Means The Florida Home Owner Would Lose Right to Fight Foreclosure Before a Judge
Posted By Larry Tolchinsky on June 28, 2012
In Florida, foreclosure defense involves dealing with the court system: a lawsuit is filed at the local courthouse, with the home owner being named as a foreclosure defendant. The home owner is given the right, with the Court’s assistance, to fight the foreclosure through legal avenues like requests for production of documents and other forms of legal discovery in the case. After foreclosure, the lender normally asks the Court for a deficiency judgment and the home owner has the right to argue against the judgment, including arguing issues related to the amount of deficiency and/or the way the deficiency is calculated.
That’s all because Florida is one of the states in this country that requires lenders to file a lawsuit in order to foreclose on someone’s home.
The rationale behind judicial review of foreclosures is to make sure that judges (and appeals courts) have the opportunity to review what’s happening. To make sure things are being done fairly for the borrower who is about to lose their home. Hard working foreclosure defense attorneys, working as advocate for the home owner, are the ones who uncovered all of the fraudulent paperwork and brought it to the attention of the Courts.
And with the stories we’ve shared here as well as all the Foreclosure Fraud stories that have made the news over the past few years, have a court looking over the bank and mortgage servicer’s actions has proven to be very, very helpful to Florida homeowners.
That may be even more true once Roman Pino’s case comes down from the Florida Supreme Court. Mr. Pino may become famous as the man that turned thousands of Florida foreclosures on their heads. (For details on this case, go here.)
Move to Move Foreclosures Out of Court Oversight
So it’s scary to read that there’s a national discussion about judicial review of foreclosure (and foreclosure defense) with the idea that it’s somehow bad for people. In one recent Reuter’s article, a study by the U.S. Federal Reserve study was discussed. In that study, the Federal Reserve determined that having foreclosures go through the process of a formal lawsuit (“judicial review” of the foreclosure) didn’t help the housing market overall and the time expended in these lawsuits did not have any long-term benefits for anyone.
Of course, foreclosure defense lawyers would point out that the longer that a family gets to stay in their family home – to have one more birthday gathering, one more Passover, one more Christmas – the better it is for that family. There’s more lost in a foreclosure than an asset on a balance sheet: when families are foreclosed upon, traditions are lost, kids are uprooted, sometimes families have to give away beloved pets and treasured property as they move into a rental.
Foreclosure defense is more than fighting a financial fight of numbers. It’s fighting against fraudulent and sneaky acts by institutions like banks, debt collectors, and mortgage servicers, appraisers, and more.
It’s fighting for Florida families who are going through a stressful financial situation and oftentimes, an emotional crisis. It can even make people sick (read this Orlando Sentinel article on how foreclosure stress impacts health).
Larry Tolchinsky’s Tip:
There are researchers who are studying the housing industry slump, looking for ways to make the economy better, and they are using information gathered in this studies to argue that foreclosures don’t need to be handled in formal lawsuits.
The Federal Housing Finance Agency’s lawyer told Congress a few months ago that states (like Florida) who allow homeowners to fight with foreclosure defenses in state courtrooms don’t get any “added benefit” and that it’s hurting the financial system (read that to be banks).” You can read his quote in the Reuters article.
Right. If Roman Pino wins, there’s going to be a lot of argument against the no “added benefit” to homeowners of having judges grade the papers of banks trying to foreclose on people’s homes.
It’s true that foreclosure defense lawyers in Broward County and in Florida and the rest of the country where courtroom process is still available to home owners are pretty emotional about this topic. Because it’s not an issue of banks or industry statistics: it’s about family homes. Real people.
People trying to stay in their homes. It’s the American Dream that is being fought for here — that’s what foreclosure defense lawyers see every day. A client that is losing their American Dream of homeownership.
When you balance that on one side and you take all the foreclosure fraud antics on the other side – the robosigning, the fake documents and affidavits (like in the Pino case), the shady bank lawyers (think David Stern), then some might argue why every state is not requiring a judge to check things over, instead of arguing to take the foreclosure process out of the courts nation-wide.
If you have questions or comments, please feel free to Chat with Larry in the comments below, at email@example.com or (954) 458-8655.