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Florida homeowners just got a new ally in their battle against Foreclosure lawsuits:  The ACLU has entered the battlefield by joining in to defend a homeowner against a Florida foreclosure action.  Florida homeowner’ s due process rights under the U.S. Constitution are arguably being violated in Florida state courts, and have been for the past few years.

How?  The American Civil Liberties Union of Florida (ACLU-Fla) joined the war against ForeclosureGate by entering a law suit begun by plaintiff George E. Merrigan against the Bank of New York Mellon fka Bank of New York (filed as Case No. 2D11-1728 in the Second District Court of Appeal).

Ms. Merrigan lives in Cape Coral, Florida. She is facing foreclosure on her home because she’s been unable to keep up with mortgage payments after her husband was involved in a car accident that left him seriously injured, and needing her to care for him full-time.  This Florida homeowner has been strong in the face of tragedy:  she has fought hard and well against every move made by the Powers that Be to foreclose on her home.

It’s one thing to fight against the bank and the bank’s lawyers.  It’s another to fight against the court’s system, too – which is, in part, the basis for the ACLU’s involvement in the case. Ms. Merrigan has had to defend herself in a lawsuit that was filed in the Lee County, Florida “mass foreclosure docket.”

The ACLU petition asserts that the “rocket docket” prevents Defendant Merrigan from getting the same opportunity to defend herself as she would in any other kind of civil action. Accordingly, the relief that the ACLU seeks includes moving her foreclosure to the standard civil docket as well as asking that the “rocket docket” be deemed unconstitutional because it violates due process under the U.S. and Florida constitutions.

Read the ACLU Petition that Asserts the Florida Foreclosure Rocket Docket is Unconstitutional

The ACLU filed its petition on April 7, 2011.  The Florida ACLU alleges among other things that:

  1. The current Florida procedure, implemented in Lee County and elsewhere and commonly referred to as the foreclosure “rocket docket,” systematically denies homeowners a fair opportunity to defend their homes against foreclosure; and
  2. That even though this rocket docket, created specifically to deal with the issue of massive foreclosure filings, has been up and running since December 2008, it’s operating under special rules that other civil cases don’t have to face, and these special rules work to move these cases through the system quickly.  So fast, in fact, that many Florida homeowners don’t have the chance to prepare their cases and defenses.

In the ACLU press release, staff attorney with the ACLU Racial Justice Program, Larry Schwartztol, explains:

“…[o]perating against the backdrop of well-documented disarray and fraud in mortgage documentation, the shortcuts taken in Lee County courts mean that homeowners may never have a meaningful opportunity to refute faulty evidence supposedly supporting foreclosure,” said  “By elevating speed over accuracy, Lee County subjects homeowners to foreclosure proceedings that violate the due process rights guaranteed by the Constitution.

From ACLU-Florida’s Executive Director Howard Simon:

“No one should ever have to go to court with the deck already stacked against them.  Nowhere does it say someone is entitled only to the justice we have time for. We can’t allow the basic protections of due process to be the victim of judicial shortcuts.”

What Does This Mean to the Florida Homeowner Facing Foreclosure?

The ACLU didn’t just pull Ms. Merrigan’s name out of a hat.  It chose this lawsuit as the best battlefield for its constitutional challenge because (1) Lee County, Florida has more foreclosures than any other county in Florida, and Florida arguably has more foreclosure filings than any other state in the country; and (2) its own investigations of the “rocket docket” operating in several Florida counties revealed that the homeowner’s due process rights are being tossed aside by courts who want to expedite the massive amount of foreclosure lawsuits on their dockets.

This is big news for all those interested in Florida foreclosure defense.   There is no prohibition against any Florida homeowner involved in a rocket docket to assert the same exact defense that the ACLU has asserted in the Merrigan matter: i.e., that their due process rights are being violated by the current court speedy-quick process.

Courts may have tried to deal with the huge volume of foreclosures filed in their clerk’s offices in an efficient matter.  However, every homeowner in Florida and elsewhere has a legal right to his or her defense against the bank’s lawsuit.  If the courts’ solutions are not respecting due process, then another wrong against Florida homeowners is being committed.

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