Monday, February 15, 2010

Fla. High Court Enacts Procedural Rules To Apply In Residential F'closre Mediations; Seeks To Tamp Down Use Of "Lost Note" Affidavits, "Sewer Service"

In Tallahassee, Florida, The Associated Press reports:

  • Lenders will be required to pick up the tab for investigating and verifying ownership and then try mediation before foreclosing Florida home mortgages under new rules approved Thursday by the Florida Supreme Court.(1) The rules are designed to help Florida's judicial system better cope with a flood of foreclosures. They follow a December administrative order by Chief Justice Peggy telling local judges to adopt a uniform mediation program.(2)


  • The rules and corresponding legal forms were proposed by a pair of Florida Bar panels. "They found that many cases were being filed by plaintiffs that didn't' own the mortgages any more," said Miami lawyer Mark Romance, who chairs the Civil Procedures Rules Committee. Romance said other cases were being filed against people who no longer owned the homes.

For the story, see Justices Adopt Fla. Foreclosure Mediation Rules (Supreme Court requires mediation to help cope with flood of Florida foreclosure cases).

(1) The court's new rules address the ever-proliferating use of "lost note" affidavits by foreclosing lenders' attorneys, and "sewer service" engaged in by process servers delivering the lawsuits to homeowners (see Case No. SC09-1460 and Case No. SC09-1579 (consolidated): In Re: Amendments To The Florida Rules Of Civil Procedure, pp.3-6):

  • First, rule 1.110(b) is amended to require verification of mortgage foreclosure complaints involving residential real property. The primary purposes of this amendment are (a) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (b) to conserve judicial resources that are currently being wasted on inappropriately pleaded ―lost note counts and inconsistent allegations; (c) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (d) to give trial courts greater authority to sanction plaintiffs who make false allegations.

  • Next, the Task Force proposed a new form Affidavit of Diligent Search and Inquiry. In its petition, the Task Force explained that many foreclosure cases are served by publication. The new form is meant to help standardize affidavits of diligent search and inquiry and provide information to the court regarding the methods used to attempt to locate and serve the defendant. We adopt this form as new form 1.924, with several modifications. [...]

(2) The December, 2009 court order adopted last August's recommendations by the court’s Task Force on Residential Mortgage Foreclosure Cases.

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