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A
bill passed last week by the Florida legislature offers efficiencies
and advantages to banks that may launch a major increase in foreclosures
in the state known for its volatile real estate market. The only thing
standing in the way is a veto by Governor Rick Scott. (Image: Nathan Rein)
HB
87 shifts the burden of proof from the plaintiff, typically a bank, to
the defendant, the homeowner. If the bill is signed into law,
homeowners must prove that the bank lacks the legal right to take your
home within 20 to 45 days of the date that the bank served the
foreclosure notice. The reduced timeline restricts the ability to
gather evidence from the bank and test it (Does the bank actually have a
legal record of your mortgage?). Without the time to discover
evidence, homeowners are at a major disadvantage at the initial hearing
or appealing a decision, presuming there are funds for an appeal.
The bank-friendly bill, H.B. 87, was passed by the Florida Senate 27 to 13 and House of Representatives
87 to 26 in partisan votes with Republicans in favor and Democrats
opposed. However, when Democrats in the Florida Senate had
opportunities to stop the bill due to rules violations, none spoke up.
The party line vote was a sideshow that masked the bipartisan assent without objection to what may be the most pro-bank legislation in any major state.
The Down Market
There were 154,000 foreclosure filings this February in the United States. Florida led the way with 32,000, according to a RealtyTrac data as reported by Florida Realtors.
For cities over 200,000 people, Florida had seven of the top ten cities
in the nation for "default notices, scheduled actions, and
repossessions," the events that comprise foreclosure filings according
to RealtyTrac.
The plunge in home values, job losses, a
lack of new jobs, and flat wages all work against homeowners trying to
keep a roof over their head. When they fall behind, the banks make
their move, Florida homeowners will find it even more difficult to
protect their rights if this legislation is signed by Governor Rick
Scott. Citizen groups are urging a veto by the governor.
Real estate foreclosures fall under state law. States are divided between judicial and non-judicial foreclosure laws.
The big bank advantages in non-judicial states are legion. In judicial
foreclosure states, homeowners still have some rights (if they can
afford to exercise them).
Florida is a judicial foreclosure
state. Currently, the court system requires that banks (plaintiffs)
prove their case. Homeowners (defendants) have the right to challenge
foreclosures presuming they have an adequate attorney.
If Governor
Scott signs HB 87 into law, homeowners will face a new version of due
process before the law. In addition, several timing and evidence
gathering impediments will stack the deck in favor of the banker
plaintiffs. Any hope for justice will become rare among citizens.
The essence of due process in our legal system is found in the burden of proof: "the necessity of proof always lies with the person who lays charges." The banks lay charges when they initiate foreclosure. Therefore, the banks have the burden of proof. Not in HB 87.
The
plaintiff "may request an order to show cause for the entry of final
judgment in a foreclosure." The court "shall immediately review the
request and court file in chambers without a hearing." If "the court
finds that the complaint is verified " the court shall promptly issue an
order directed to the other parties named in the action to show cause
why a final judgment of foreclosure should not be entered."
The
bank that initiates the action need only provide a written request.
That request is reviewed in chambers without any one challenging the
evidence or logic ("without a hearing"). When the order is issued solely
on the basis of the judge's uninterrupted review in chambers, the
homeowner assumes the burden of proof. Show that this document is false
the court orders. Justice and basic concepts of law are sacrificed to
allow banks greater ease and efficiency in taking possession of your
home.
Another problem created for homeowners is found in timelines
required to make a case against the foreclosure, as limited as the
opportunity may be to have the case heard.
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