The (un)Fair Foreclosure Act | CBS 12 – State Lawmakers Push to Cut Courts from the Foreclosure Process (VIDEO)

State lawmakers push to cut courts from the foreclosure process

PALM BEACH COUNTY, Fla. — Many Floridians facing foreclosure get to stay in their homes for a couple of years before losing their houses. But that could change.

A plan to take the foreclosure process out of the courts is gaining support with Florida lawmakers. A similar proposal introduced last year was defeated after an uproar from homeowners. But it’s expected to be filed again.

Bankers say it’s a more efficient way to manage foreclosure cases and get thousands of properties back on the market to help pull Florida out of it’s housing rut.

But Foreclosure defense attorney Dustin Zacks disagrees.

“If we speed up the process and eliminate judicial oversight there’s gonna be more problems there will be more houses back in the market which will further depress the market.,” said Zacks.

Right now Florida is one of only 20 states to handle the foreclosure process through the courts. Opponents say it’s not perfect, but it’s better than denying homeowners due process.

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12 Responses to “The (un)Fair Foreclosure Act | CBS 12 – State Lawmakers Push to Cut Courts from the Foreclosure Process (VIDEO)”

    this new law is only to let the ‘dirty” judge’s off the hook that is coming back & they got shit on their faceS which

    fraud, forgeries & perjury they condoned al ths time &

    now we who are fighting & are chasing a “purple’ elephants w/”no” co.’s legal RIGHTS to take our homes

    by fraud, perjuries & forgeries of atty.’s over the phone allowed by the court & atty.’s never give US the

    production of documents they say that existed but don’t.

    the judge’s give them everything…..

    this is “justice?”

    only more court corruption & more “injusice” & another stab in the heart, for homeowner’s while we never get

    our day in court.

    this is not “america” land of the “free”

    we are controlled & all our possessions are “stolen by the courts by no due process

    pretty no one will (own)their homes anmore our cases are still “open” the court’s “aiding” & abettng “fraud”

    allowig hese “nonexistng” mortgaage co.’s to sell our homes while we’re still in “litigation”

    the pasco sheriff’s dept says it’s not fraud aren’ t we lucky in 50 states it’s crmiaal but not in “F-L-O-R-I-D-A”

    AIN’T THAT SOME “S-H-I-T” ???.



  2. Reuben Nieves says:

    Dear Ivent,

    What the government should have done to stem this economic desaster was to take over the banks and modify the loans. It could have ended in 2008. It just that simple.
    Not one of those bankers has gone to jail. We just don’t learn. Ever since the Great Depression the banks have had there way with consumers. National banks were created to act as an economic engine for the benefit of the country not to run over the country with that engine.

  3. Reuben Nieves says:

    Bobby Swan asks the question “[I]f such an enactment would be unconstitutional, then how did the other 30 states get that type of legislation passed? And why was this never challenged by the other states? Why did not the Supreme Court step in and reverse these state laws?

    Answer; non-judicial foreclosures may or may not be unconstitutional. They are not all alike. In the power of sale foreclosure in California there is no hearing. The lender assigns a private trustee to sell your house when a default has occurred. In Colorado, the state has provided a public trustee, an agent of the state to conduct the sale. Part of the premise is that the banks are not private corporations but public corprations, federal instrumentalities because they were created for public and national purposes as evidenced by Osborn vs Bank of the United states and Easton vs Iowa formally discussed.
    Banks have enormous amounts of money dedicated to hiring powerful legal firms and lobbyist to dominate the debate.
    Most of the challenges are from homeowners who cannot afford an attorney, and whose cases are summarily dismissed on procedural grounds. The banks have done a fine job in clouding the issue. They come to the court as if they were private corporation just so they do not have to mess with a trial and a jury. It’s cheaper. and yet it is also unconstitutional. The Rule 120 hearing in Colorado, apart from the issue of the bank as federal actor, also denies due process of law, and the equal protection of the law. It does not have a right to appeal and no right to a jury trial.
    The court in Lindsey said “We have recognized that if a full and fair hearing is provided, the due process clause does not require the state to provide appellate review”. The rule 120 does not provide appellate review or a full and fair hearing. Colorado unlawful detainer provides a right to appeal and a jury. The rule 120 does not. There is no rational reason for treating tenants differently from homeowner, therefore, a violation of the equal protection clause of the 14th Amendment has occurred.

    Your asked why hasn'[t the Supreme Court stopped this. The Supreme Court does not have to take any case. The choose what cases they want to review. Most people who challenge the non-judicial foreclosures have no money and are treated badly when seeking access to the court. The Supreme Court is not prone to accept cases generated by pro se lititgants.
    Almost all the cases that have ruled power of sale foreclosure are constitutional have little or no reference to the cases I have presented. Neither plaintiff or defendants have framed the debate properly introducing the approriate cases and appropriate arguments. Follow the logic of the cases I have presented. Banks as federal actors are constrained by the 5th Amendment. Constitutionally they cannot take your property without a hearing. The due process issues in rule 120 hearing adds another dimension.

    There has been some cases that have raised the constitutionality of a power of sale foreclosure but the arguments were inadequate.

    You can contact me at

    • lvent says:

      Rueben, how is it that foreign owned banks, or foreign owned lending institution D/B/A as American banks and lending institutions, have more rights in a court of law than an American Citizen? The Federal Government is fully funded by the U.S. TAXPAYER and we back all of their “loans” so, how is it there is not an Unconstitutional conflict of interest if we lend the FEDERAL GOVERNMENT CREDIT to fund their Ponzi Schemes yet they own the businesses that we fund? Like, the Federal Reserve bank for example, prints money off of the backs of the U.S. taxpayer….when they issue money to these criminal Ponzi Scheme banks, they are really issuing credit to them, with the full faith and confidence that the U.S TAXPAYER will be able to produce enough GDP to back that up….Under these horrible economic conditions these Wall Street criminals have created, the Fed is just creating more problems by propping up Wall Street they are kicking the can down the road and blowing up another giant bubble..THE FEDERAL GOVERNMENT IS SETTING AMERICA UP TO FAIL BIG TIME AND ARE BEING VERY SNEAKY ABOUT IT……. This is all more fraud to cover up for the 140 TRILLION in debt WALL STREET has rang themselves up with backed by 13 trillion in real estate that they do not own and never did own…..they never lent us any money so PLEASE explain how all of this, from the SET UP TO FAIL BY THE FEDERAL GOVERNMENT AT ORIGINATION, THE ILLEGAL AND UNCONSTITUTIONAL BAILOUTS, TO THE FRAUDCLOSURES, IS NOT UNCONSTITUTIONAL AND THEREFORE ILLEGAL…I MUST HAVE MISSSED SOMETHING..OUR JOBS ARE GONE, OUR LIFE SAVINGS IS GONE, HOMES LOST, … IT SEEMS TO ME THEY ARE STEALING FROM ALL OF US…..TO BANKRUPT ALL OF US…..TO PAY FOR ALL OF THEIR FRAUD…..SO THEY CAN STEAL OUR COUNTRY….AND THE U.S. GOVERNMENT IS ALLOWING THIS SO BY AND LARGE THIS IS A HITLER PLAN……BY THE NEW WORLD ORDER WHO HAS HIJACKED AMERICA AND WE HAVE TRAITORS FROM WITHIN POSING AS AMERICANS IMPOSING FASCISM ON THE AMERICAN PEOPLE, UNDER THE GUISE OF FALSE DEBT ENSLAVEMENT…..140 TRILLION IN WALL STREET DEBT IS NOT OUR DEBT……..THROW THE TRAITORS IN WASHINGTON, D.C. OUT AMERICA!!! ABOLISH THE FED!!!

      • lvent says:

        I like Dylan’s idea of a separation of Government and State…I don’t want to pay anymore Federal taxes, no more S.S.#., I don’t want to be a tradeable piece of meat, a commodity on the stock market via my birth certificate..I don’t want to participate in anymore of their Ponzi Schemes..I don’t want to lend them anymore credit in my name for them to sell an interest in to foreign haters of America and to buy corrupt politicians loyalties with….., I don’t want to put currency they print off of taxpayer credit into their banks which they lend from and create more credit from that credit backed by the U.S. Taxpayer and they make interest off of the credit we issue them which is backed by all of us…..and the money they insure in their banks is credit and only insured by tax payer dollars which is more credit . They are a complete credit based failure and I don’t trust them, period…

  4. COCO says:

    This law will not help the economy in Florida or any other place. The fraud will be rampant. The governmant is not looking to sell these foreclosed properties-they are going into the rental business. Another way to destroy the homeowners.

  5. Reuben Nieves says:

    National banks and federal savings associations are federal instrumentalities subject to the due process clause. Therefore power of sale foreclosures that deny a hearing or subjects a homeowner to a summary proceedings with no right to appeal is unconstitutional as a violation of the 5th and 14th amendment. National banks are public corporations created for public and national purposes. 22 US 816.

    Can the government divest itself of its identity with a corporation created and participated in for a public purpose sufficiently to allow the corporation to use a procedure that does not allow procedural due process? That question was answered in Lebron v National Railroad Passenger Corporation. 513 U.S. pgs 374, 375, when the court clarified and expanded the definition of federal actor. The court said:

    c) …Like some other Government corporations, Amtrak’s authorizing statute provides that it “will not be an agency or establishment of the United States Government,”
    (e) Amtrak is an agency or instrumentality of the United States for the purpose of individual rights guaranteed against the Government by the Constitution. …… A contrary holding would allow the government to evade its most solemn constitutional obligations by simply resorting to the corporate form, (cites[B, I,U added]

    Like Amtrak, national banks including CITIBANK and its operating subsidiary CITIMORTGAGE are federal instrumentalities. The banks are members in banking systems created to advance the government’s economic public goals, and controlled through the directors of The Comptroller of the Currency. Like Amtrak it is not for Congress to make the final determination of the status of these corporations as government entities for purposes of determining the constitutional rights of citizens affected by its actions. Homeowners are citizens whose constitutional rights are affected by non- judicial foreclosures exercised by federally chartered corporations like National banks. To paraphrase an old saying, “that with great power comes great obligations.” This is no less true when Congress confers enumerated and incidental powers on a bank corporation it creates for important governmental functions. It follows that with the immunities from taxation and state laws the constitutional obligations of the government must also attach. For as Justice Scalia said in Lebron, at p. 399:

    But it does not contradict those statements to hold that a corporation is an agency of the Government for purposes of the constitutional obligations of Government rather than the “privileges of the government,” when the State has specifically created that corporation for the furtherance of governmental objectives, and not merely holds some shares but controls the operation of the corporation through its appointees.

    In Lebron, respondent also invoked the court’s decision in the Regional Rail Reorganization Act Cases, 419 U. S. 102 (1974), which found the Consolidated Rail Corporation, or Conrail, not to be a federal instrumentality, despite the President’s power to appoint, directly or indirectly, 8 of its 15 directors. See id., at 152, n. 40; Regional Rail Reorganization Act of 1973, § 301, 87 Stat. 1004. But the court specifically observed in that case, that the directors were placed on the board to protect the United States’ interest

    “in assuring payment of the obligations guaranteed by the United States,” and that “[f]ull voting control … will shift to the shareholders if federal obligations fall below 50% of Conrail’s indebtedness.” 419 U. S. , at 152. Moreover, we noted, “[t]he responsibilities of the federal directors are not different from those of the other directors to operate Conrail at a profit for the benefit of its shareholders,…which contrasts with the public interest “goals” set forth in Amtrak’s charter, ….. Amtrak is worlds apart from Conrail: The Government exerts its control not as a creditor but as a policymaker, and no provision exists that will automatically terminate control upon termination of a temporary financial interest.
    In distinguishing Amtrak from Conrail for the purpose of determining that Amtrak was a federal instrumentality subject to constitutional constraints, the court focused on the control of the corporation by the government, the public interest goals of the corporation, that no provision existed that would automatically terminate the government’s control upon termination of a temporary financial interest, and the fact that in Amtrak the role of the government was as a policymaker and not as a creditor as in Conrail. The elements which led the court in Lebron to attach the constitutional obligations of the 1st amendment to the corporation can also be attributed against CITIBANK and CITIMORTGAGE in attaching its 5th amendment obligation because defendants are federal instrumentalities created for public and national purposes in carrying out the government’s public economic goals as mandated by its authority under the Commerce Clause. Thus the government’s control through the regulatory agencies is as a “policymaker” where control would never terminate. Control of the operations is exercised by the directors of the OCC. In federal savings associations in the OTS. Since this action, the two agencies have been consolidated under the authority of the OCC.
    In American Bankers Mortgage Corp. v Federal Home Loan Corp. (D.C. No. 94-55967 1995, 9th Cir.) the court decided the issue against the framework of Lebron. The court held that Freddie Mac was not an entity subject to the due process clause of the 5th Amendment because it was more private and that in comparing Amtrak, the governmental control over the operations was measurably much less. Neither Lebron nor the court in American Bankers Mortgage Corp. decided what would be the bare minimum control over the operations by the government that would suffice to put a corporation under the ambit of the due process clause. That however is not the case here for as the Court in Easton explained the government’s control over the operations of national banks ID at p. 239:

    Our conclusions, upon principle and authority, are that Congress, having power to create a system of national banks, is the judge as to the extent of the powers which should be conferred upon such banks, and has the sole power to regulate and control the exercise of their operations.
    In federal savings associations the government control is clarified in Fidelity Fed. S. & L. v. De la Cuesta, 458 U.S. 141 (1982) p. 161, as the court said:

    The broad language of § 5(a) expresses no limits on the Board’s authority to regulate the lending practices of federal savings and loans. As one court put it, “[I]t would have been difficult for Congress to give the Bank Board a broader mandate.” [cites] And Congress’ explicit delegation of jurisdiction over the “operation” of these institutions must empower the Board to issue regulations governing mortgage loan instruments. …[B,I, U added]

    • Bobbi Swann says:

      Question for Reuben Neives: If such an enactment would be unconstitutional, then how did the other 30 states get that type of legislation passed? And why was this never challenged by the other states? Why did not the Supreme Court step in and reverse these state laws?

    • lvent says:

      Rueben Nieves, I agree. Fannie and Freddie are an unconstitutional conflict of interest within themselves…..Which one are they, Private or public? they can’t legally be both…Funded by the U.S TAXPAYER and the IMF……is their biggest shareholder and bondsholder? B…U…L….L…S…H..I..T..!!.

  6. To tell The Truth says:

    Rick Scott, GOP to consider taking courts out of foreclosure process

    TALLAHASSEE, Fla. – Sept. 22, 2011 – The push is on in Florida to cut the courts out of the foreclosure process.

    Supporters of the concept – which is used in nearly 30 states – say it will speed foreclosures, get houses back onto the real estate market and boost the economy.

    Opponents say it puts property owners at the mercy of banks.

    Gov. Rick Scott, House Speaker Dean Cannon and Senate President Mike Haridopolos all say they are interested in considering legislation to change Florida laws so judges won’t have to referee foreclosures.

    And the House Civil Justice Subcommittee on Tuesday heard a presentation on foreclosures detailing states that include courts in the process versus those that don’t.

    Bottom line: Foreclosures take longer and are more expensive in states that involve courts, said state economist Amy Baker.

    “I don’t want to leave you with the impression that the data suggests the judicial process is a terrible process,” Baker told lawmakers. “It’s actually ultimately a policy decision on where you want the burden to be, where you want the rights protection to be.”

    Florida has the nation’s second highest foreclosure rate, and is one of 20 states that require all foreclosures to go through the court system.

    Court action isn’t needed in Michigan, Arizona, California and Nevada – other states with high foreclosure rates. On average, foreclosure proceedings in those states take from 392 days in Arizona to 511 in California, according to Jacksonville-based Lender Processing Services.

    In Florida it takes 638 days.

    That’s too long, Scott said in a recent interview with the Times/Herald.

    “It’s not good for anybody in the process,” he said. “It costs money. Either the homeowners lose money or the lenders lose money, and the longer it takes, it slows down what actually happens in the real market.”

    Scott said he is eager to learn more about how making the switch might impact Florida’s housing market.

    “If we do go down that path does it really change anything?” he said. “ And we’ve got to make sure that citizens are treated fairly. We can’t create an environment where the homeowners aren’t treated fairly.”

    In 2010, the Florida Bankers Association pushed unsuccessfully to change the state’s law so judges didn’t need to sign off on foreclosures, a process called nonjudicial foreclosure.

    Much of the state’s housing crisis is caused by a glut of homes awaiting foreclosure, said Anthony DiMarco, executive vice president of government relations for the association.

    “If you can move more quickly, properties can get back on the market, and it will stimulate the economy,” he said. “You won’t have blight. Property taxes will get paid. Condo fees and homeowners association fees will be paid. People will buy paint and furniture.”

    But state Rep. Darren Soto, D-Orlando, who fought the 2010 legislation, said he will fight it again if it returns in 2012.

    “I don’t think we need to be replacing people’s rights with expediency, particularly when we’re talking about property rights,” said Soto, a lawyer who represents homeowners facing foreclosure. “This is a homesteader’s right to access the courts. I can’t think of any property right more important.”

    Even in state where judges aren’t forced to preside over foreclosure cases, property owners can take the proceedings to court.

    But the filing fee alone costs almost $2,000 in Florida, Soto said. “That’s cost prohibitive for most people, and that’s not including the legal fees you’d have to incur to fight it,” he said.

    At the least, Soto said legislation should include an exemption for homesteaded property owners who could be fighting to save their home.

    © 2011 The Miami Herald, Janet Zink. Distributed by MCT Information Services

  7. Readdocs says:

    Non judicial states should be challenged in the Supreme Court on
    constitutionality of this procedure, home owners are consistently
    denied due process. Of course this makes the fraud committed
    easier and more efficient.
    The nightmare of fraudulent foreclosures will be an ongoing ordeal
    when it is finally realized how many homes have been stolen through
    criminal actions.

  8. housemanrob says:

    …where are the intelligent producers….people get to stay in their homes a couple of more years!…….no adressing fraud, maybe they will shortly…and still acting or thinking like the Homeowners are at fault. These media producers and reporters don’t realize they will be looking for jobs……because there will not be anybody left in florida or south florida to report the news to. The pythons and gators and the monitor lizards will be all that is left!

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