New legislation — House Bill 87 and Senate Bill 1666 — which backers say will clear the backlog of foreclosure cases in Florida actually will create more problems by putting speed ahead of justice.
The backlog is blamed on homeowners allegedly dragging their feet. In reality, banks have been the cause because of federal directives to pursue loss-mitigation alternatives or by voluntarily slowing down the process to explore settlement options in the interests of both parties and the market.
However long it takes to conclude a foreclosure in Florida, given the unprecedented magnitude of the fraud, forgery and abuses to which banks have admitted, we should exempt this category of civil court cases from “time to complete” requirements.
We should not make public policy decisions based on unverified, incorrect and misleading information, particularly when the data are provided by the same industry that admitted wrongdoing.
The next problem behind any push for foreclosure reform is that the real-estate market is improving. Prices have rebounded in Florida because, in part, inventories of foreclosed homes are being managed by the banks and homeowners.
Short sales and negotiated resolutions of foreclosure cases yield higher returns than faster foreclosures, but these settlements would disappear under the proposed legislation.
The big winners would be institutional buyers. When they buy properties in bulk, they exclude Realtors who profit from short sales and from other end user transactions. Instead of supporting the legislation, Florida’s Realtors should be following California’s lead and opposing all actions to speed foreclosures.
Foreclosure-legislation proponents have also convinced homeowner associations to support their bills by arguing that this legislation will help them. It’s true that the so-called, “show cause” provisions of both bills would allow any lien holder to show cause as to why a final judgment of foreclosure should not be entered. But if the plaintiff chose not to file any of the evidence needed to obtain a foreclosure judgment, a court could not enter a judgment.
Associations already can demand status conferences and existing law allows judges to force a plaintiff to move a case forward. Also, associations already can move their own cases to judgment, and pending legislation will allow them to move their cases much more quickly.
Since 2012, the market for third-party investors to purchase association liens at foreclosure auctions has been robust. Investors pay the $4,000 to $20,000 in HOA liens, take title to the property and rent it out before a bank forecloses. This market will be eliminated, and associations will be stuck with large inventories of unpaid lien cases, making things even worse.
It is undisputed that those responsible for the foreclosure crisis are the financial institutions that filed these cases, as admitted in two recently signed federal settlements. These settlements should lead to more protections, not lowered standards. The full magnitude of bank wrongdoing has not been fully revealed, and even more will be swept under the rug.
Roy Oppenheim, attorney, Weston