Governor Rick Scott sat down at his Governor’s desk on June 7, 2013, picked up his pen and signed lots of bills into law that were sent to him by the Florida Legislature. Rick Scott signed things like the Veteran’s Organizations Bill (SB 390) and the Emergency Medical Services bill (SB 530) into law – good things.

However, Governor Scott also did something that many believe is wrong – and unconstitutional – on that day, when he signed HB 87 into law. Interestingly, Governor Scott sent a letter along with his approval of the legislation, giving his reasons for approving the foreclosure reform law, you can read it here:

Among his reasons:  his perception that this law will “bring more certainty to the housing market…” as “[t]his process will put these homes back onto the housing market and allow Florida families who have experienced a foreclosure to begin working to repair their credit and finances.”

New Florida Foreclosure Reform Law Hurts People

We’ve discussed some of the problems of this proposed legislation in prior posts including:

• Florida House Passes “Foreclosure Reform” Bill HB 87: Travesty of Justice for Florida Home Owners and Florida Borrowers – Here’s Why
•  Florida Legislature Annual Session Begins Today: Proposed Laws That Impact South Florida Home Owners In a Big Way Are on the Table

However, some are going a step further than rallying against the law (like we have along with others like Florida State Senator Darren Soto).

Why? What’s wrong here? 

Florida HB 87 Hurts Florida – and Florida Homeowners

It is true that the Florida Legislature (after two years of trying) has passed the Florida Foreclosure Reform Bill and Florida’s Governor has signed it into law.  It is effective as of June 7, 2013 (the date that the governor signed it) and many of its provisions will be valid Florida law in a matter of days (July 1, 2013).

However, the fight is not over — there are constitutional issues to be addressed here, and judicial review of the constitutionality of the new law is inevitable — it’s really a question of what lawsuit is going to bring this argument before a Florida court first.

1. Federal due process violations

The reality is that this new law may be used to force Florida homeowners out of their homes without respecting their constitutionally guaranteed due process. The new law will allow banks to take and keep legal title to property in wrongful foreclosures and prevent the homeowner from getting that family home returned to them.

The home is lost to them forever, despite being victims of a bank’s bad acts, under this new Florida statute.  This would arguably violate the United States Constitution’s prohibition against retroactive application of laws in its Art 1, § 9 and Art. 1 § 10 which provide:

No bill of attainder or ex post facto Law shall be passed….

No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.

2. Florida state constitutional violations

Additionally, one of our colleagues is arguing (and has written Governor Scott on this issue) that the new law arguably violates the Florida Constitution as well, insofar as it is an unconstitutional impairment of contracts , going against Article I, Section 10 of the Florida Constitution, which states:

SECTION 10. Prohibited laws.—No bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed. 

Larry Tolchinsky’s Tip:

Florida homeowners already suffering from the emotional and financial impact of a Florida foreclosure fight don’t need more stress in their lives — but the reality is that this new law is not going to make things easier for the families facing the loss of their homes.  Now, more than ever, it’s important to recognize that the courtroom may be the true battlefield for justice in these Wild West times of Florida law.  It’s true that the legislative branch and the executive have done their work here, but the judicial branch still exists to check and balance what they’ve done against a constitutional framework.   This fight’s not over.

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 or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

“I’m happy to take your call.”