COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary


According to the Florida Bar News, they are now working on a CLE course that will be 3.5-4.0 credits without charge, and JUDGES and LAWYERS are going to be encouraged to attend. Terry Hill is the director of the Bar’s Programs Division. No date is set yet. The current list of presenters include

  • 12th Circuit Chief Judge Lee Haworth
  • 19th Circuit Judge Burton Connor
  • Boca Raton Attorney Margery Golant
  • Bar Ethics Counsel Elizabeth Tarbert

They have not asked for it, but I would suggest that others volunteer to present, and that lawyers from around the state submit, clear and concise materials in word format and PowerPoint format. I do NOT suggest that any pro se litigants submit any materials — this is not intended to be a forum for airing grievances.

From what I have gathered from lawyers on the ground, the goal seems to be about two things: handling the volume of foreclosures and doing it right. This is a unique opportunity for ALL the players are on all sides of the foreclosure process to focus on the elements of law and procedure that govern civil actions for foreclosure of residential homes. Issues of due process, motion practice, discovery and judicial economy are going to be prime topics.

In my opinion, the outcome of this seminar will govern the way foreclosures are handled around the state for years to come — so, Florida Lawyers, if you have something to say about judicial conduct, application of the rules of evidence, discovery, motion practice, and the protection of the interests of homeowners, borrowers, lenders, creditors, assignors, assignees, indorsements, delivery, possession, holders, holders in due course, and payee under the obligation, note and mortgage, this is the time to bring it up.

Presumptions regarding securitization and authenticity of documents are going to be a difficult challenge, but this seminar is probably going to end the debate. Don’t expect anyone at the seminar to present a case for requiring the would-be forecloser to prove the obvious. This seminar is not about slowing up the foreclosure process for the benefit of borrowers sitting in their homes without paying anyone — but neither it is about giving the right to foreclose to anyone who claims it.

Missing from the list of presenters, for now, is anyone who can explain securitization, how it was designed, and how it was executed in practice. It is this issue that will be the ultimate determinant in the outcome of many if not most cases. But don’t expect any silver bullets to come out of this seminar. The presenters have no intention of shooting down either side — the intent being to inform the participants of the REAL procedural issues and REAL substantive issues raised by the revelations of robo-signing, securitization, transfers, deliveries, fabricated and forged documents, and what to do with the obligation of the borrower, even if the note and mortgage (or transfer documents) are defective.

Chief amongst the tasks of the presenters is going to be the definition of terms like “lender”, “creditor”, MERS, “nominee,” “Limited signing officer” etc.

Having given 1/2 day, 1 day and 3 day seminars, I really don’t know how they are going to cover the required material in a 1/2 day seminar. But it is a start — and it is a step in the right direction. Most lawyers in Florida share the concern of title companies that the state’s property title system has been corrupted by either the foreclosure or the auction sale process. The debate that is now engaged is how to fix that and whether it can be done by the judiciary.

7 Responses

  1. Neighborhood Preservation Act’.

    This is a great bill that would allow foreclosed homeowners to lease their properties back from the bank after a foreclosure sale. The homeowner could lease the property for up to 5 years, plenty of time to win litigation and get the bank kicked our of your property once and for all.

    This bill passed unanimously in the House on August of 2009 and has been hung up in the Senate since then. Call your senator and tell them to get off their pathetic asses and finally do something FOR THE PEOPLE!

    To amend the Federal Deposit Insurance Act to authorize depository institutions and depository institution holding companies to lease foreclosed property held by such institutions and companies for up to 5 years, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


    This Act may be cited as the `Neighborhood Preservation Act’.


    The Congress finds as follows:

    (1) Depository institutions and affiliates of depository institutions currently may control and lease foreclosed property for a limited period of time often subject to safety and soundness considerations, under various Federal laws and the law of some States.

    (2) Authorizing such institutions and affiliates to enter into a long-term lease with the occupant of the property or any other person would reduce the number of residential properties entering into the housing inventory, which in turn would help to stabilize home values and restore confidence in the housing markets.

    (3) Allowing depository institutions and affiliates of such institutions to lease foreclosed property will allow the institution or affiliate to dispose of such property into a presumably more stable market at the end of the lease term which would reduce the loss the institution or affiliate may otherwise be required to recognize upon disposition of the property.

    (4) Providing a means for foreclosed property to remain occupied during the housing downturn will preserve the property itself as well as the aesthetic and economic values of neighboring homes and even whole neighborhoods.

    (5) Allowing depository institutions to lease foreclosed property gives families the opportunity to remain in the home, causing less disruption to families, until they have the means to become a homeowner again.


    (a) In General- Section 18 of the Federal Deposit Insurance Act (12 U.S.C. 1828) is amended by adding at the end the following new subsection:

    `(y) Leasing of Foreclosed Property-

    `(1) LEASING AUTHORIZED- Notwithstanding any provision of Federal or State law restricting the time during which a depository institution, or any affiliate of a depository institution, may hold or lease property, or any provision of Federal or State law prohibiting a depository institution, or any affiliate of a depository institution, from leasing property and subject to this subsection and regulations prescribed under this subsection, any depository institution, and any affiliate of a depository institution, may lease to any individual, including a lease with an option to purchase, for not to exceed 5 years an interest in residential property which–

    `(A) was or is security for an extension of credit by such depository institution or affiliate; and

    `(B) came under the ownership or control of the depository institution or affiliate through foreclosure, or a deed in lieu of foreclosure, on the extension of credit.

    `(2) SAFETY AND SOUNDNESS REGULATIONS- The Federal banking agencies shall jointly prescribe regulations which–

    `(A) establish criteria and minimum requirements for the leasing activity of any depository institution or affiliate of a depository institution, including minimum capital requirements, that the agency determines to be appropriate for the preservation of the safety and soundness of the institution or affiliate;

    `(B) establish requirements or exceptions that the agency determines are appropriate under this subsection for any such institution or affiliate for any other purpose; and

    `(C) provide for appropriate actions under section 38 with respect to any such lease if necessary to protect the capital or safety and soundness of the institution or affiliate or any other necessary enforcement action.

    `(3) LENGTH OF LEASE- If any provision of any Federal or State law, including the Bank Holding Company Act of 1956, governing the permissible activities of depository institutions or affiliates of depository institutions permits a depository institution or any such affiliate to hold property as described in paragraph (1) for a period longer than 5 years, any lease under paragraph (1) may be extended to the extent permitted by such provision of law.

    `(4) SUNSET- This section shall apply only with respect to leases entered into during the 2-year period beginning on the date of the enactment of the Neighborhood Preservation Act.’.

    (b) Intent of the Congress- It is the intent of the Congress that–

    (1) no permanent change in policy on leasing foreclosed property is being established with respect to depository institutions and depository institution holding companies; and

    (2) subsection (y) of section 18 of the Federal Deposit Insurance Act should not apply to leases entered into after the sunset date contained in such subsection.

    Passed the House of Representatives July 29, 2009.



    111th CONGRESS

    1st Session

    H. R. 2529

    AN ACT

    To amend the Federal Deposit Insurance Act to authorize depository institutions and depository institution holding companies to lease foreclosed property held by such institutions and companies for up to 5 years, and for other purposes

  2. From the old school, it is and has always been clear to me, that the title company had the responsibility of guaranteeing title and that was done through a proper process to allow them to guarantee title. They knew how to examine title, what was required and it was they that made the decision to allow foreclosure mills and loan servicers to cough up, long after the auction, the necessary paperwork to make it look like all was in place. It was their job, they should be held accountable if they issued policy and they need to pay the claims. They cannot walk away from this responsibility unless of course the justice system allows it.

  3. All the states should be putting legislation through to make all foreclosures judicial foreclosures. I have heard many horror stories about California–the lender does not answer lawsuits at all, sells the debt to another debt collector and that debt collector sues as unlawful detainer. People who thought they were getting a loan mod, and they foreclose on them and sell their house, and no one notifies the homeowner. Two foreclosures going at the same time on the same house. California needs to do what Florida is doing. More information to everybody in the legal world is a good thing. http://www.challengingforeclosure.com Sirak@challengingforeclosure.com

  4. All states should do the same. We, the United States of America, need to be on the SAME page.
    Are we UNITED or not????, or are we just the STATES of America

  5. Bailed out Banks asking for more money


    We need to put alot of comments on this article on the wallstreet journal

  6. By the way great article Neil Garfield.



    Did the bill pledging federal funds for the health care of 9/11 responders become law in the waning hours of the 111th Congress only because a comedian took it up as a personal cause?


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