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Massive amounts of foreclosures clogging county's civil courts

dchang@MiamiHerald.com

Most everyone involved in a foreclosure says they never wanted to go through the process in the first place: Not the homeowners at risk of losing their houses, not the banks that loaned them the money, not the judges who must rule on the cases.

Still, court clerks say more than 135,000 foreclosures could be filed in Miami-Dade, Broward and Monroe counties this year -- compared to a tri-county total of about 17,500 in 2006.

The avalanche of filings has overwhelmed the civil courts and prolonged the pain of foreclosure for all: Homeowners are living in limbo; banks are losing money; and the ripple effects are felt from condo associations that can't collect dues to municipal governments that must spend scarce resources to shutter or maintain abandoned houses.

``Everybody's getting burned in this thing,'' says Judge Jennifer D. Bailey, who oversees civil courts for the 11th Judicial Circuit, which covers Miami-Dade County. ``The bank's not going to come out of this in one piece. The people who owned the property, whether they're homeowners or investors, are not going to come out in one piece.''

Even the courts are struggling to hold together, as foreclosures crowd the calendars of judges who also must tend to traffic, probate and other non-criminal cases.

``We're sort of built to handle 25,000 to 35,000 cases a year,'' Bailey says of Miami-Dade civil court. ``We have almost 35,000 by the end of June that are foreclosures alone, out of a total of 50,000 cases filed.''

Statewide, about 17 percent of the more than 3.5 million mortgages in Florida are somewhere in the process of foreclosure -- the highest rate in the nation, according to a second-quarter report of the Mortgage Bankers Association, a real estate finance industry group.

Foreclosures that once took three to five months to complete in Miami-Dade and Broward counties now take nine months to one year to move from initial filing to final judgment and auction. The system comes painfully close to mirroring a Monopoly game gone awry: Miss a court date, cancel an auction, go back three months and start all over again.

The crisis is more than a matter of volume. A labyrinth of rules that vary by judicial circuit is causing confusion among plaintiffs, and many borrowers have gone AWOL, forcing lenders to pursue more time-consuming methods.

Even in less harried times, foreclosure is a paperwork-intensive process, requiring lenders' attorneys to file loan notes, affidavits and other documents -- and clerks to issue summonses, process servers to serve defendants, and judges to review and verify each file.

In this crisis, foreclosing on a property has become even more cumbersome. Because many mortgages involve complex financial transactions, where the original note has been passed from one investor to the next, judges can have a difficult time discerning who has the legal standing to foreclose.

``With securitization and exotic loans, things have gotten much more complicated,'' Bailey says. ``It makes resolution of the case much more difficult.''

Then there are underwater borrowers who walk away from homes that have lost so much value that they are worth less than what they owe. Some of these borrowers never respond to a foreclosure summons -- forcing lenders to pursue default and prove that they've made good faith efforts to contact the borrower, such as publishing a notice in the newspaper for 60 days.

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