Florida Orders All Homestead Property Foreclosures into Mediation

See AOSC09-54_Foreclosures.

A good step in the right directions.

I would add that you should be very careful that you don’t get trapped into the “lender narrative.” The Judges are going to very receptive and even enthusiastic about referring these cases to mediation, so don’t annoy them with motions, pleadings or hearings that attempt to circumvent the mediation process. As for whether the order will be applied to existing cases, it remains to be seen how Florida Judges react to this Administrative Order.

CAUTION: The “Lender narrative” tries to focus attention exclusively on when you made your last payment and whether the obligation was created when you purchased the financial product (Mortgage Loan). It avoids all issues as to who is the creditor and how you could get a FULL accounting of all financial transactions in the securitization chain that either were or should have been allocated to your loan or the pool to which your loan was assigned. (Their tactic has been to keep the focus on the small window in which one servicer was receiving payments from the homeowner, ignore payments made on behalf of the homeowners, and to effectively bar you from inquiring as to whether they received any money from bailouts, AIG, or even if they turned over the payments you DID make to the creditor).

In order to avoid getting trapped into the “Lender narrative” I would suggest a number of possible steps. First, of course is get all your information together. There is an intake form on this blog that gets you to create a narrative of your own mortgage transaction. Second, get a forensic audit or review/analysis or TILA audit. Third, get a declaration from an “expert witness”. Consult with local counsel as this administrative order might be augmented by local rules. Several Circuits have issued their own administrative orders that have not yet been revoked or suspended.

If you are permitted to do so by the Judge, file a motion to dismiss the foreclosure suit and if that is denied then file your defenses, affirmative defenses and counterclaims. You don’t want to put yourself in the position where you are are effectively in default and give the plaintiff an opportunity to petition the court for entry of a default final judgment.

Lastly, in ALL events, I would seek answers to the basic questions: the identity of the creditor and the full accounting for ALL transactions allocated or could be allocated to your loan or the pool that your loan was alleged assigned. The QWR and DVL ought to accomplish this but it is rarely regarded seriously by the Plaintiff and Judges seem reluctant to enforce it because of their unfamiliarity with RESPA, TILA, UCPA etc. So you might need to file interrogatories that are limited to (I think) 25 questions including sub-parts. A Request to produce would also be needed.

Preliminary discovery (Interrogatories, Request to Produce, possibly Request for Admissions) should be directed at the single issue of identifying the decision-maker who could attend mediation for the “lender” side of the case.

Your position should be that as a result of the forensic review and the advice of your expert, an issue of fact exists — conflicting representations between those proffered or plead by Plaintiff’s counsel and the information you have obtained from experts. At this stage you should not try to win your case by having the Judge agree with you that the foreclosure is a fraud. Stay away from that assertion until you can really back it up.

The point is simply that an issue of fact exists that affects the mediation. Only true parties  to the dispute can be decision-makers. Only the creditor is a true party with that power unless it has been legally and irrevocably delegated to another party. Either way you need the idenity of the creditor(s), their contact information and the documentation that shows that the Plaintiff is empowered to make final decisions regarding this loan.

You need to conduct limited EXPEDITED discovery to either confirm the Plaintiff as the creditor or identify the creditor. Recent news reports of suits against intermediaries by bondholders and instructions from bondholders to fire servicers and other intermediaries who breached their fiduciary duties to the investors indicate a question of fact as to whether the party who filed this suit is a creditor, representing a creditor with authority to do so, whether they have decision-making authority and even whether the attorney appearing represents the Plaintiff or any other party.

Your point is that there is a question of fact that must be answered in discovery in order to proceed with compliance with the Supreme Court’s Order and that you are only asking for information the Plaintiff should already have if they properly field the foreclosure suit. You want the creditor’s name and contact information so you can (a) attempt to settle privately (b) comply with Federal mandate on seeking modifications, and (c) comply with Florida mandate on mediation. How can you do this if the creditor is not present? How can you enter into any agreement with a party whose authority to bind the creditor is in question?

You might need to file a motion with the Court and notice it for motion calendar. The motion would simply ask that you be permitted to conduct expedited limited discovery to facilitate the mediation process.

8 Responses

  1. My foreclosure was filed as a non-homestead when I clearly live in the property and have since I bought it, also, they served me and sent notices to another woman with my name but different middle initial and a different address. They filed a lost note affidavit and a hearing was set but I was never notified of any court activity. What should I do?

  2. i read florida has a requirement to work with a foreclosure counsler. does the court issue you the request or do you have to request to the court participation in the RMFM program? its very cloudy. The girl at the clerks office said by responding to my summons i would be entiled to mediation before a actual hearing. After not hearing from my lender or thier attorneys for a year and just after i recieved a notice of lack of procecution from the court, i suddenly get a invite to a “foreclosure workshop” by fedex. the work shop takes place less than 8 hours after i recieved my special package. sounds fishy to me

  3. What if you do not want any mediation? I don’t, I want the case settled on law, as I feel I have the upper hand at this time. Can I refuse?


  4. A friend of mine in Miami beat Shipero and Fishman lawyers for Citi mortgage back from a $250,000.00 first and second to take a $32,000.00 short sale after a 2 year court battle, she ripped them apart and they settled for a short sale, wiped out the second took $32,000.00 on the first which was $200,000.00 and cleaned her credit.

    she closed the sale today for $32,000.00 and did not have a lawyer, in the 11th circuit in Miami Dade, now the properties all in that area are worth mush less than they are financed for.

  5. I filed a motion to dismiss for a XYZ trust foreclosure and never set a hearing date, have let it lay there for 8 months with no response from the plaintiff.

    Should i set a hearing and get it dismissed, or is it bad news if they refile and we have to go to mediation?

  6. What will the mediation do to non-homestead-properties? for example residentail land.

  7. If you have a foreclosure case ongoing that I could set a hearing on my motion to dismiss and would win, would i want to do that, even if it means being forced to mediation when the lender XYZ trust refiles. The motion to dismiss i filed has had no response in 8 months by the plaintiff and i have been letting it lay there.

  8. Thank You Neil
    You are Wonderful!
    You are the Best!

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