Florida Consumer Justice Advocates- Fighting For Citizens Prepare to Fight The Unfair Foreclosure Law
Posted by: Matthew D. Weidner, Esq.
Lawmakers Try Taking Away Judge’s Right to Correct Court Errors
A group of Florida attorneys, who joined together to form the Florida Consumer Justice Advocates (FCJA), are speaking out against a bill Governor Scott will soon be asked to sign into law. The legislation, HB 87, was passed by lawmakers as a way to speed up foreclosures. FCJA is actively preparing a formal appeal because provisions of the bill represent Constitutionally impermissible attacks on the authority of Florida’s judicial branch.
The most dangerous part of the new legislation is the so-called, “Finality of Foreclosure” provision which eliminates one of the most important powers Florida’s elected circuit court judges have….the power to immediately and completely correct mistakes in any Order they execute in their official capacity.
Under current law, if a judge is convinced that a foreclosure judgment should not have been entered against a defendant, for any reason whatsoever, the court has authority to quickly and easily vacate or undo the improper judgment. No need for an appeal, no significant time or expense and not even a hearing if the judge decides a mistake has been made.
The power that a judge has to immediately correct errors is an essential power that lies at the core of our nation’s judicial system. Legislators have no right to strip this power away.
However, by passing House Bill 87, Florida lawmakers overstepped their bounds by insisting that judges should lose the power to undo their own mistakes. This is attack on the fundamental power we entrust to Florida’s judges that cannot be allowed to stand.
Unfortunately, Florida’s judges cannot speak out to challenge this attack on our judicial branch, but Florida Consumer Justice Advocates can…and we will.
“This Finality of Foreclosure provision provides that if a home is lost to foreclosure, even if the foreclosure was the product of gross fraud, complete error or total mistake, the innocent consumer can never, ever get their home back”, says Matt Weidner, a St. Petersburg, Florida attorney that represents homeowners in foreclosure actions and is the President of the Florida Consumer Justice Advocates. According to Weidner, the bill is unconstitutional because it interferes with the court’s authority to reach a just result. The only remedy a homeowner that has lost their property by error or fraud has is to file a new lawsuit only for money damages. Even if money could compensate for the loss of a family home…perhaps a unique homestead that’s been in a family for generations… compensation would be offset by any mortgage on the property so the ability to collect any payment is largely an illusion.
The fight to protect this judicial power is particularly compelling in light of the Foreclosure Backlog Reduction Plan, Recommendations of the Foreclosure Initiative Workgroup Report, released on April 10, 2013 which showed that nearly as many foreclosure cases were reopened in 2012 as new ones were filed with a total of 186,651 new cases were filed but a staggering 156,069 previously-closed cases were re-opened. See page 34
Another provision of the bill that is problematic is the section that requires a property owner in foreclosure to make payments each month directly to the plaintiff just to be able to defend the action. Consumer advocates say this imposes an unfair and unconstitutional condition on accessing the courts and is grossly unfair because it requires a litigant to pay the party suing them as a condition of asserting their right to be heard in court.
“It’s repugnant to the most basic notions of due process that a citizen must pay his accuser in order to plead his case before a judge” argues FCJA’s Matt Weidner. In addition, while the legislation requires Defendants to pay to the Plaintiff, it contains no direction that this money must be returned in the case of a wrongful foreclosure. “Think about that, a plaintiff can file a bogus lawsuit, get paid real money and then vanish without having to pay back the money. That is just absurd.” Says Weidner.
These battle lines…and others within the bill…have been drawn. The bill is on Governor Scott’s desk and we are waiting to see if he will sign it. Florida Consumer Justice Advocates will immediately file suit if this bad legislation is allowed to become law.
Floridians do not need more foreclosures and we do not need faster foreclosures. What Floridians need, and what the Florida Legislature has an obligation to provide, is a properly–funded judicial system.