As most lawyers will probably tell you, the new Florida law changes the procedure and frankly contradicts the Rules of Civil Procedure issued by the Florida Supreme Court. In all events foreclosure defense attorneys should move quickly to issue discovery requests and subpoenas in anticipation of the application of this law. The good news is that you have a powerful argument for requiring expedited discovery in view of the fact that the judge can issue a final judgment as early as 20 days after the filing of the lawsuit for foreclosure. The bad news is that the new law seems to eliminate or at least infringe on your right to file a motion to dismiss as set forth in the Florida Rules of Civil Procedure.
The new law contains elements that are difficult to decipher. The new law puts a burden on the borrower to show a genuine issue of material fact that would eliminate the possibility of a summary judgment in favor of the party who filed the lawsuit. In essence, the new law is in conflict with the Florida Rules of Civil Procedure in that an answer and affirmative defenses is only due after disposition of a motion to dismiss, which is a matter of right under the rules in Florida and every other state. I would imagine the Florida Supreme Court will, as it has done before, jealously guarded its right to issue rules of procedure and that this law will eventually be struck down. Meanwhile we have to treat it as the law of the state.
On the flip-side, the law requires proof of ownership of the loan before the burden shifts to the borrower. But the proof of ownership is in the form of copies of documents which the banks have already shown they are very willing to fabricate and forge. In essence, the new procedure passed by the legislature turns the law on its head, to wit: at this stage in litigation the allegations of the plaintiff are taken as true only for procedural purposes and not for the purpose of entering final judgment without a hearing and without an opportunity to conduct discovery and otherwise cross-examine witnesses and challenge documents. it is a not-so-clever way of abridging the due process rights of everyone in the state and as a precedent in other matters would undoubtedly lead to disaster, but for my supreme confidence that the Florida Supreme Court will treat this as a no-brainer and strike down the law.
Thus the new law is as close to changing Florida to a nonjudicial state as you can get without actually doing it. I would suggest that in order to preserve your procedural and constitutional rights for your clients that you file an immediate motion to dismiss to be heard on an emergency basis where a motion to dismiss is appropriate or proper (which appears to be in nearly all cases).
I would further suggest that in addition to issuing requests for discovery (which under normal rules would be due after the hearing where the judge rules on whether the borrower has raised any material issues of fact, which is a further conflict with the Florida Rules of Civil Procedure as promulgated by the Florida Supreme Court) that you file an emergency motion to expedite discovery.
And lastly I would insist that the hearing on whether the borrower can raise issues of material fact (keeping in mind that the borrower is not even been given a chance to raise those issues without waiving the borrowers right to file a motion to dismiss) must be an evidentiary hearing conforming with the rules of evidence.
As a final note to my remarks on this law, I believe it is incumbent upon the attorney for any client that has been actually affected by this law to bring the matter up directly to Florida Supreme Court. It is difficult for me to imagine any scenario under which the court would uphold this law — simply on the grounds of who has authority to enact rules of civil procedure. The Florida Constitution gives that power to the Florida Supreme Court — not the legislator or the governor. Speaking personally, I intend to follow the rules of appellate procedure on behalf of clients instead of making them up to suit me or my client. That at least is a good starting point.
As a general remark on many of the issues of our day, I think it would be a good idea to start with the contents of the state Constitution and the United States Constitution before passing any laws pretending as though the Constitution did not exist. The Constitution is the supreme law of the land. If you don’t like what it says, there is a provision for amendment. Without the amendment, the law is whatever the Constitution says it is. That is what is meant by a nation of laws as opposed to a nation of men. This latest law from the legislature signed by Gov. Scott is an example of mindless pandering to the banks who are contributing to the campaigns of the legislators and officers of government. But in addition to this particular law I find myself listening to debates that do not make any sense. As a result both sides of the debate on social issues and foreign policy, financial issues and the economy, are wrongly starting with the premise that the issue is even up for debate. Both sides seem to ignore the supreme law of the land as their starting point. Neither side seems to stake out a defensible position on which we can have a reasonable debate.
Revisions To Mortgage Foreclosure Procedures In Florida
http://www.jdsupra.com/legalnews/revisions-to-mortgage-foreclosure-proced-31636/
Florida tops the U.S. in May foreclosures
http://www.naplesnews.com/news/2013/jun/14/florida-tops-the-us-in-may-foreclosures/
Bank of America Lied to Homeowners and Rewarded Foreclosures, Former Employees Say
http://www.propublica.org/article/bank-of-america-lied-to-homeowners-and-rewarded-foreclosures
New law to speed foreclosures draws criticism and praise
http://www.heraldtribune.com/article/20130618/article/306189993
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