Florida Petition Seeks Mediation of Foreclosures

As reported in the Florida Bar News dated March 1, 2009, The Supreme Court of Florida has received a petition to require foreclosure mediation. The article by Mark D Killian, managing editor states “Contending that prejudgment mediation could save more than 130,000 Florida homes from foreclosure  and assist more than 360,000 borrowers,” the plan is almost a verbatim acceptance of the plan submitted by Neil Garfield almost one year ago. The plan would apply to owner-occupied primary residential dwellings.

“The February petition urging the Court to invoke its emergency rule-making authority says one of ‘the most frustrating realities for many homeowners facing foreclosure is the inability to speak to a responsible decision-maker for the lender…” The proposed emergency rule, if accepted, would require the presence of the real lender by an authorized decision-maker at the time of the mediation. No telephone appearances would be accepted. The real lender and its authority to appear must be presented to the mediator prior to mediation.

However, the rule would stop short of imposing specific sanctions if the real lender does not show up or if the person appearing is no a responsible decision-maker. As stated elsewhere repeatedly on this blog it seems unlikely that the real lender will ever show up since that would mean all of the investors owning certificates of mortgage-backed securities, who at this point have been partially or completely paid by AIG-type insurance, federal bailout or who have trade their securities in private transactions. While one would be hopeful that the failure of the real lender to show up would result in dismissal of the foreclosure and the opening of the door for a quiet title action, it is also possible that Judge’s will exercise some discretion that doesn’t really exist. They could for example, accept the servicer as the real lender and as the authorized representative, leaving the borrower back in the same position as before the order directing the parties to mediation.

8 Responses

  1. I am certified in Mediaton for foreclosure in NE Florida. There are several foreclosure mediation programs throughout the state now that might be able to answer questions that you may have also. Check with your local bar association or local mediation unit also.

  2. They could simply require that no foreclosure notice be filed with a missing note. That would stop most of the filings.

  3. I was served with foreclosure papers last week. I sent a certified letter the to the lenders attorney denying all allegations to the lawsuit and requesting an in person hearing. Meanwhile I filed for loan modification 2 weeks ago. The lender said it could take up to 60 days to decide and that they would continue foreclosure proceedings. What is my next step if they file a sale date? I will try to slow them down with a short sale request which should get me another 4 or more months delay and then a bankruptcy filing after that. Does that sound reasonable? How soon before the sale date should I wait before filing for bankruptcy?

  4. Florida Petition Seeks Mediation of Foreclosures:

    I am now in the process of waiting for my court-appointed settlement facilitation. I have been pro se in this Foreclosure action brought against my deceased parents estate.

    I was fortunate when I went to a free consultation with a very expensive attorney and he wrote a letter for me and use a local civil procedure rule of the district court.
    The mortgage company took me back to court using an extension of settlement deadline to really try to impose certain request ( like holding title to a property left intestate), then they made a request that I be the personal rep of the estate or “no” settlement consideration, since they were only suing me in a rem judgement (confusing).

    Well, I had an order appointting me Special Admin of the Estate. They were also asking that the Plaintiff not appear in person but telephonically. Well, they were ordered to appear in person and must have full authorization to settle or the judge will settle the case herself.

    Since then I have fought tooth and nail and have walked out of District Court basically winning each time. It is like a boxing match… round after round, but you can win if you learn and fight.

    I feel that there is an advantage of not being an attorney sometimes. You are more attentive to the details that someone might over look.

    Most of the attorney’s have done thousands of these foreclosures. Attorneys that basically make their living off foreclosures rarely are opposed and for that reason they are not prepared.

    I lucked out and the Plaintiffs attorney was more worried about his ego that they kept making mistakes. When I am asked about how I got to settlement, I just tell them, the Plaintiffs gave me my defense.

    It’s not an easy task but I couldn’t have done what I have that has kept me in our home for 10 months.

    Thanks for all the sharing. I could not have made it this far without the knowledge that I obtain from this website. Thanks Garfield!

  5. bt,

    you can check what documents have been filed via the web in some counties. my home is in Orange County, Florida but I live in Houston (work related) and I requested an e-file account from the clerk’s office. I can check the file and also download copies of the documents filed.

  6. Pamela- thanks for your tip. I was not thidding. I offered to the foreclosure mill, in May 2008, they could send it certified mail or i would tell them where i would be, as i split time between two states/homes. I have 12 emails back and fourth with the paralegal of The Plaintiff attorney firm proving this offer to serve me easily. I found out, they asked for notification by publication in March 09, 10 months after i first talked to them. Obviously, i am now glad they are so slow and didn’t try very hard. The Servicer never even sent a default letter and i have been in loan mod for months. If i have grounds to file motion to dismiss, then they have to refile and it will buy me more time, to get my devpoing business out of the ditch? are you a floirda attorney? no one gets it in the Panhandle.

  7. Dear bt
    IF the bank has not served you in 120 days – they have to obtain an alias summons. IF they chose to publish they have to provide an aff’d of due diligence of search that they could not find you. IF you file a Mt to Dismiss then they know where to find you. You can not evade process of service. So, you might want to review your file at the court house to see if there is an aff’d of due diligence and get a copy of the petition. Take it to a local attorney “who gets it” and see what your options are!
    I hope this helps

  8. This sounds great. Does anyone know in FLoirda, My foreclosure was filed August 2008, never served. The Trust asked to serve by Publication Feb 2009, 6 months later. SHOULD i file a motion to dismiss uner the 120 day FRCP rule?

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