The proposed “foreclosure reform” legislation that failed last year, got revamped, and was proposed again this year to be made into new Florida law has been a big concern for foreclosure defense attorneys and advocates for Florida home owners.
We’ve been monitoring House Bill 87 as it has been making its way through the Florida Legislature (read our prior posts here) and now, sadly, the House of Representatives has approved HB 87 and it is now setting on Governor Rick Scott’s desk, awaiting his signature to become the law of this state.
This New Foreclosure Reform Law Creates Lots of Problems for Lots of People
As we have been pointing out — along with lots of other people including Florida Senator Darren Soto and the group Jurists Engaged in Title Integrity — this new legislation doesn’t help as much as it hurts lots of people, in lots of ways. If Governor Scott does not veto this bill, it will become the law of the State of Florida and it will then be up to Florida home owners courageous enough to take this fight to the appellate courts to try and return justice to the Florida Home Owner.
What injustice is here? There are many bad things in HB87 from a Florida home owner’s viewpoint, here are some things to consider:
1. Florida Land Titles Are In a Mess
For instance, there’s the question of land titles. With this new law, future buyers of Florida real estate are going to have a big problem on their hands because Florida real estate titles are simply a huge mess.
Insiders know this: testimony given before the Florida House Subcommittee considering the passage of this very bill by none other than a representative of the Florida Title Insurance Industry explained to the lawmakers that there has been so much fraud in Florida foreclosures that title insurance companies cannot figure out what land title files have fraud tainting them and which are clean. From his testimony:
“You should not buy a foreclosed property, knowing how much fraud was out there. … We cannot determine what files are infected with fraud, I wish we could, but we cannot, so you should not purchase foreclosed property.”
Banks know that real estate titles in the State of Florida are not trustworthy these days if the property has been touched in any way by a foreclosure. And that’s a lot of property records, isn’t it, given the record breaking number of foreclosures this state has experienced over the past few years?
By passing HB87, the Florida Legislature has done nothing to help clear up the Florida Title Mess and in fact, has contributed to this problem. Helping banks to foreclose means that banks and mortgage lenders wrongfully foreclosing on homes get to do so faster. Then, the future homeowner who purchases that real estate gets an incomplete title to property and a big headache down the road.
2. HB87 Blocks Victims From Getting Their Homes Back After Wrongful Foreclosures
Another big problem with the passage of HB87: the home owner who has been wrongfully foreclosed upon — who has lost their family home to a bank who has improperly foreclosed upon that family — cannot get their home back. The new law has included within it a “finality of foreclosure” provision.
HB 87’s language includes a section that protects banks by stating that if a lender forecloses on a Florida home, and later it’s shown by foreclosure defense arguments in court that the foreclosure was done illegally (fraud, mistake, etc.), then the bank is protected by the new “finality of foreclosure” law which means that the homeowner’s remedies do not include getting that home back.
Here is the provision as it appears in the final version of HB87, the language blocking a borrower the right to get his home back is in bold:
702.036 Finality of mortgage foreclosure judgment.—
162 (1)(a) In any action or proceeding in which a party seeks to set aside, invalidate, or challenge the validity of a final judgment of foreclosure of a mortgage or to establish or reestablish a lien or encumbrance on the property in abrogation of the final judgment of foreclosure of a mortgage, the court shall treat such request solely as a claim for monetary damages and may not grant relief that adversely affects the quality or character of the title to the property, if: [ conditions omitted] ….
(b) This subsection does not limit the right to pursue any other relief to which a person may be entitled, including, but not limited to, compensatory damages, punitive damages, statutory damages, consequential damages, injunctive relief, or fees and costs, which does not adversely affect the ownership of the title to the property as vested in the unaffiliated purchaser for value.
Once the bank forecloses, wrongfully or not, that home owner cannot get the family home back even if the evidence shows that the bank has foreclosed wrongfully on that property. Did the bank mix up which condo to foreclose upon? Too bad, the wronged condo owner doesn’t get their condo back. Did the bank never own the mortgage, and therefore had no legal right to file a foreclosure lawsuit? Too bad: the home owner cannot get their home back.
Right now, it’s not clear if Governor Rick Scott will sign this bill into law. If he does, then the Florida courts will be where justice is found — until then, this bad legislation will be the law of the land here in Florida and lots of Floridians are going to be hurt by this thing.
Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at email@example.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.
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