Florida Senate Interim Report 2012-130 | Judicial vs Non-Judicial Foreclosures – Issues and Options Related to the Fraudclosure Process


Issue Description

During the nation‟s mortgage foreclosure crisis, Florida has sustained one of the highest foreclosure rates in the country. In Florida, foreclosure – the process by which a lender terminates a borrower‟s interest in property secured by a loan – is currently subject to judicial scrutiny for all commercial or residential property other than timeshare property. Litigating a foreclosure action is comparable to litigating other civil actions in Florida, in that the lender must file a complaint and obtain a court order to foreclose a mortgage. The exponential volume and the unsteady pace of foreclosures filings in this state significantly strain the state courts system.

Starting in late 2010, some large banks put a freeze on foreclosures due to potential problems with foreclosure and loan documents or insufficient service of process. In particular, attention was being drawn to “robo-signing,” a practice under which someone signs many affidavits each day. The person signing the affidavit may have no personal knowledge of the case but swears to processes that may or may not have taken place. The reduction in new foreclosure filings, in turn, placed pressure on the budget for the state courts system, which is based significantly on fees generated from these filings.

Although details of the process vary among states that employ it, nonjudicial foreclosure generally is a mechanism under which the lender does not have to secure a court order to foreclose the property. During the 2010 Regular Session, the Florida Legislature enacted a measure authorizing nonjudicial foreclosure of timeshare properties,1 under which an appointed trustee conducts the sale and distributes proceeds. In recent legislative sessions, proposals have also been introduced, but not ultimately adopted, to authorize nonjudicial foreclosure generally or for commercial property in particular.2 Recently enacted federal legislation imposes limits on the use of nonjudicial foreclosure for most residential mortgages. Specifically, the Dodd-Frank Wall Street Reform and Consumer Protection Act, signed into law on July 21, 2010, prohibits any contractual requirement that would impose the use of nonjudicial foreclosure as the process for mortgages on principal dwellings and for closed-end mortgages on secondary dwellings.

The mortgage foreclosure crisis has renewed attention on the foreclosure process and on related real property issues. Practitioners and judges cite variables that can separately or in convergence impede foreclosures. Examples include lending industry practices of assigning mortgages, which can complicate establishing who has authority to foreclose; failure on the part of some plaintiffs to produce documents or submit filings integral to adjudication of the matter; litigation strategies of some defendants which may be designed to forestall foreclosure for as long as possible; workload constraints that prevent judges from reviewing case files to identify problems in advance of hearings; and a depressed housing market that may create a disincentive for lenders to proceed with a foreclosure sale and assume ownership responsibility for the property.

This interim report identifies differences between judicial and nonjudicial foreclosure; examines issues that may be impeding the progress of cases through Florida‟s judicial foreclosure process; reviews responses by the state courts system to the mortgage foreclosure crisis; and analyzes prior statutory reforms designed to expedite foreclosures in this state. The purpose of the report is to provide legislators with potential avenues for reform, as well as a foundation for evaluating proposals that may arise to expedite the foreclosure process.

Full report below…




Florida Senate Interim Report 2012-130

3 Responses to “Florida Senate Interim Report 2012-130 | Judicial vs Non-Judicial Foreclosures – Issues and Options Related to the Fraudclosure Process”
  1. Floridians need to learn the ID of all sponsors of this Bill, as well as their lackies, then need to ENSURE that they are voted out of office.

    Its realty not hard to start turning this around though collective voting, and throw these people out of office. They appear to be slaves to special interests and lobbiests, and are not standing up for your rights.

    Remember this very clearly when stepping into the voting booth

  2. j. Alonzo says:

    Please Watch! Its an older video, but its a good one. Ron Paul Revolution 2012!

  3. Jim Bethea says:

    I compare this scheme to a “shooting gallery” at the county fair ~~~ line them up ~~~ run them across ~~~ shoo them down !!!!!

    This BS story that the FL courts are strained for money will not hunt in SC ~~ If there is fraud in the courts, then the judicial systems must find the ways to provide for their budget increases ~ #1 suggestion would be to place extremely high penalties on the banksters and their crooked collection attorneys ~~ Any plaintiff or aid and abetting attorneys knowingly and willfully filing a frivolous, undocumented and unsupported Complaint would/could be fined their license revocation and $250,000.00 for each and every fraudulent action that take part in ~~~ How about that?

    2. They could pettion the illegal MERS corporation to pay their unpaid registration fees with penalties ~ accruing at $1,000.00 per registry pre month not being paid in full after being served with this Petition or Notice of Claim……….

    3. Take the money that these bankster and their bottomfeeding collection attorneys are lobbying the state Atty Gen, other officials and the FL legislature with and give it to the court system ~~

    4. Charge the banksters $2,500.00 per month for their lack of supervision [maintaining and paying taxes, etc] on every foreclosed house or business that they have foreclosed on that was not properly represented in the FL court systems ~

    5. Give these big banksters an option that if or when any past foreclosed files are examined and found to be illegally repossessed and the banks had prior knowledge of such; they can now admit their fraud and ask for a review of possibly transferring title/deed back to the owner they were stolen from or if they remain silent until the time that these criminal activities may be later discovered then they will be fined by the state of FL for $2 million dollars for each illegal foreclosure.

    This should get some action going and some funds raised so that the FL judical system cannot further aid their bankster friends while precluding the people’s rights to due process under the title of we don’t have the money for a judicial process on foreclosures ~~

    What a den of thieves and associates………..

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