Wednesday, June 12, 2013

The "Rocket Docket" or Expedited Foreclosure in Florida

Governor Rick Scott recently signed into law a bill that will speed up foreclosure cases in Florida. Consumer rights groups says this is a blow to homeowners. Economist types say it is good for getting all of the delinquent homes out of the courts. This article does not take a position in either way, but merely explains how the new law affects homeowners.

Prior to the passing of the law, which, by the way, goes into effect immediately, a bank would file a foreclosure complaint and serve it on the homeowner. The homeowner would then have 20 days to respond. Usually, the homeowner would ask for an extension of time to respond to the complaint, maybe another 20 days. Foreclosure defense firms would then file a motion to dismiss the complaint for some technical reason. The motion to dismiss would likely get denied, but there would be additional time to answer the complaint. Once an answer was filed, the bank would usually file a motion for summary judgment. Due to the numerous foreclosure cases pending in the system, a motion for summary judgment would not be heard for at least 90 days, sometimes much longer. When the motion for summary judgment would be brought up for hearing, the motion is normally granted and the court would set a sale date. Although the sale dates should be set within 25 days of the hearing, the courts routinely granted 90 day sale dates. Ten days after the sale date is the usual date when the homeowners' rights to the home are extinguished.

(Foreclosure defense attorneys often try to find ways to extend these times. The average foreclosure in Florida takes 853 days from the initial default to the foreclosure sale.)

The new law seeks to expedite the process significantly. However, there remain certain requirements that protect the homeowner. In many cases, the foreclosures were delayed because the banks could not establish a chain of title showing that they actually held the promissory note and mortgage. The new law requires that the foreclosure complaint clearly state facts to show that the bank is the holder of the note and mortgage at the time the complaint is filed. This may result in a delay in bringing the action.

Under the new law, once the complaint if filed, the bank, or even a homeowner's association, may file a request for the Court to enter an order to show cause for the entry of a foreclosure judgment. This hearing can be set as early as 45 days after the complaint has been served on the homeowner. If the homeowner does not present a viable defense, the Court can set a sale date at the hearing. At the new law's fastest application, a homeowner can be out of the home within 70 days of the date they are served with a complaint.

This certainly is a lot faster than the Courts have been proceeding. In reality, it is unlikely that the Courts will be able to move the cases this quickly. But, a homeowner should no longer think that when served with a complaint it will take months, if not years, before the house is foreclosed.