This Article Is From 2012

Foreclosure lawsuits are proceeding to trial here in Miami, and it’s being reported that the Miami-Dade Circuit Court, with its foreclosure docket,  is the busiest circuit court in the entire state.   According to the Miami-Dade Clerk:

• there have been 24,289 foreclosure filings this year (not counting December 2012);
• there were 16,672 foreclosure filings in Miami-Dade County in 2011; and
• there were 34,400 foreclosure filings in Miami-Dade County in 2010.

Because the court system across the state is bottle necked with an unprecedented number of foreclosure lawsuits filed in recent years, more state budget money was dedicated to solve the courts congestion.  In Miami, two senior judges were added with the extra funding along with supporting personnel as well.  Still, there is a huge volume of foreclosure lawsuits sitting on the court dockets in Miami-Dade County.

These are civil lawsuits.  Some of them are several years old and still sitting on the court’s docket.  So, the court itself is setting cases for trial, not waiting for one of the parties to request that the case be tried.  The judges aren’t waiting for the bank or the borrower to ask to set a a trial date.  The judges are notifying the banks and borrowers that a trial date has been scheduled for them.

Miami-Dade Circuit Judge Jon Gordon is reported to move through around 50 foreclosure trials each business day in his courtroom in an attempt to clear out the backlog.  That’s a lot of trials, even at television show speed: assuming seven working hours a day (an 8 hour day with one hour subtracted for lunch and breaks), this is conservatively estimated to be 7 trials per hour.

Seven trials each hour: that’s an 8.5 minute trial. No wonder they call it the “rocket docket.”

Larry Tolchinsky’s Tip:

According to Governor Rick Scott, things are looking up for the Florida housing industry.  The Florida Governor issued a press release this week where Governor Scott was quoted as saying the following:

“It is always welcomed news when we learn our housing market is on the rise and that more and more individuals are able to make their home ownership dreams a reality. In Florida, we are creating jobs and have had the largest drop in unemployment in the country since December 2010. We still have a lot of work to do, but today’s news is further proof that we are headed in the right direction.”

Given the past few years, the Florida economy and Florida home owners and especially Florida mortgage home loan borrowers, need a lot of news like this: finger pointing by experts that things are getting better.

The Rocket Docket for Foreclosure Cases Is Pushing Through Foreclosure Cases That May Have Foreclosure Fraud Issues Within Them

However, the troubles brought on by the years of mortgage fraud and “robo-signing” haven’t disappeared.  There are many, many wrongs that have been done to Florida home owners and Florida borrowers that have yet to be righted.   The big, big mess in Florida real estate law is still something that needs to be cleaned up.

The “rocket docket” of Miami-Dade County foreclosure circuit courts may be moving files out of the court’s inbox, but it’s these cases that have much of the big challenges to Florida laws within them.  It was during these years that the foreclosure farms were churning out foreclosure lawsuits and it was during these times that lots of the bad acts like “robo-signing” were taking place daily.  (For details on what happened then, check out our free e-book that gives an overview.)

This push to clear that bottleneck of foreclosure cases is being done because the Florida Supreme Court and others think that the bottleneck is helping to hold down the Florida economy — that it will help all of us to get these old cases cleared up and moved out. That’s the reason for the “Rocket Docket” – to get things back to normal.

However, in these files there may well be tricky issues that deserve more attention: attention that the banks are not going to encourage and that borrowers may not understand exists or be too uninformed or simply too overwhelmed to discover and fight.

Banks Won’t Spotlight Their Own Snafus: Foreclosure Defense Attorneys Need the Opportunity to Read Bank Files Once They Get Them

Foreclosure defense attorneys understand all too well how banks and mortgage lenders hide the ball in foreclosure lawsuits.  Fights to get complete files are commonplace in discovery disputes when experienced real estate lawyers are representing home owners in foreclosure lawsuits brought by their lender.  It’s shocking how difficult it can be for a homeowner to get access to the underlying documents in a foreclosure case when they aren’t represented by an attorney.

Banks don’t like to fork over those files all too often because the paperwork is filled with holes.  Holes that may well mean that there is a legal challenge to the right of the bank or lender to foreclose on the property in the first place.

Under Florida law, a bank or lender must demonstrate their legal right to foreclosure on the property.  It’s not enough to give evidence that there has been a default on the mortgage.   The bank or lender must be able to prove legal ownership — and there can be serious ramifications if the foreclosure judgment is entered and that ownership is lacking.

What Happens to Real Estate Titles of the Future: Will Rocket Docket Cases End Up Throwing Out the Baby with the Bath Water?

Consider the Bevilacqua case from 2011.  There, the Massachusetts Supreme Court ruled that a bank that did not have the legal right to foreclose upon a property, and later sold that home after foreclosure, had nothing to sell and that the legal title remained with the person who had owned the home prior to foreclosure (the one who had the mortgage that went into default).  No matter that some innocent person bought the property from the bank; no matter that this person sold it to another innocent party.  The improper foreclosure action may mean that all of those conveyances were void.

Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific situation, please call or email Larry because he can’t answer specific fact questions in general comments. He’s happy to take your call.