An attempt to fix the sloppy legal work plaguing thousands of foreclosure cases in Florida has been ineffective, and has now caused a legal mess of its own.
The Florida Supreme Court got tough on attorneys for banks and lenders in February, responding to stories of homeowners losing their property based on shoddy or incomplete paperwork. The incomplete filings also wasted judicial resources and clogged up the courts.
To combat that, a new rule enacted by the high court requires the attorney or bank filing a foreclosure to verify — under penalty of perjury — that the allegations and paperwork are accurate when a residential property is at stake.
But attorneys have not followed the rule. Some contend they do not have to, arguing that the Supreme Court said the rule was not in effect yet.
“The decision by the Supreme Court in Florida specifically says ‘Not final,'” said Miami attorney Gerald Richman, who is still fighting the new requirement on behalf of one of the state’s largest foreclosure firms.
The issue may have to be settled by the Florida Supreme Court, though no action is scheduled.
The continuing problems with the foreclosure process could affect the speed at which the housing market recovers by slowing the process of reselling properties and stabilizing the market.
The vast majority of the state’s housing lawsuits come from Florida’s five so-called foreclosure mills, where attorneys can each handle thousands of cases gushing from the deflated housing market.
A court-sanctioned review of hundreds of residential foreclosure filings in Sarasota and Manatee counties — unofficially dubbed “Stop the Slop” — found that nearly all the lawsuits lacked basic documentation.
Of the 52 cases in the first round of review in Sarasota, all lacked the new verification requirement or other proof the bank is entitled to take the property, an attorney who reviewed the cases says.
Backed by local Chief Judge Lee Haworth, who served on the state task force that recommended the new rule, judges in Manatee and Sarasota counties used the new rule to throw out dozens of foreclosure complaints in the past month.
But Miami attorney Richman, who represents banks and lenders, contacted Haworth last week and told him he and the other judges were jumping the gun.
The confusion results from the wording of the Supreme Court’s ruling.
Haworth, along with other judges and attorneys across the state, rely on the part of the ruling that states the rule “shall become effective immediately upon the release of this opinion.” The opinion was released Feb. 11.
But the foreclosure mills cite a line later in the opinion that states the ruling is “not final” until any motions for rehearing are considered. That interpretation delays implementation of the rule, which benefits their bottom lines because verifying the documents takes time and could bring perjury accusations if wrong.
Richman filed a motion for rehearing in February, saying the new rule needs to be clarified. But the top court has not acted on that motion, set a date to hear arguments or otherwise clarified its ruling.
A spokesman for the Supreme Court said ethical rules prevent anyone there from commenting on the opinion, or clarifying whether the verification rule is in effect.
The confusion sent Haworth backpedaling last week, after Richman said his client would appeal the tossing of the cases. Haworth temporarily suspended that part of the “Stop the Slop” program Friday, saying he was not alone in having questions.
“I’m expecting they’ll do something to clarify the situation,” Haworth said.
The bottom line for homeowners: when a foreclosure is filed, do not give up your property easily. Rather, make sure the bank or lender retaking your home has the paperwork to show it can, attorneys say.