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New Florida Court Admin Orders re: Foreclosures

I’ve written previously about the Florida Legislature not renewing the designated funding for residential mortgage foreclosure cases. On July 1, 2011, most counties were forced to curtail or even shut down entire divisions when the money ran out.

In response, the Tampa judges in Hillsborough County, Florida put into place a new Administrative Order S-2011-029 setting forth new foreclosure procedures. This Order contains provisions that are intended to increase efficiency of the judiciary to stay on top of the foreclosure filings that are expected to increase the end of this year. One provision allows for the disposition of non-summary judgment motions without a hearing.

This refers mostly to the Motions to Dimiss or Motions for More Definite Statement although many motions fit this definition. A Motion to Dismiss or Motion for More Definite Statement is typically the first response to a foreclosure summons filed by foreclosure defense attorneys. The intent is to make sure that the Plaintiff’s Complaint contains sufficient allegations as to who they are and how they claim an entitlement to foreclose. The thinking is if the Plaintiff claims to have the right to foreclose, then why hide the ball? File a Complaint that properly alleges standing and attach a Note, Mortgage and documents to show the chain of transfers and default. This would eliminate unnecessary delays and discovery. The Florida Supreme Court felt the same way when in February 2010 it instituted a requirement that a Plaintiff “verify” the truth of the allegations before filing a Complaint.

Despite this requirement, Plaintiffs still file complaints that broadly claim an entitlement to enforce the Note and Mortgage, and attach documents without valid assignments and missing, illegible or undated endorsements that actually contradict the allegations in the Complaint. Foreclosure defense attorneys attempt to raise this issue early in their Motions to Dismiss or Motions for More Definite Statement. With the new procedures set forth in Administrative Order S-2011-029, hopefully this process will still retain validity and not become a mere rubber stamping event.

In case one wonders whether this is a denial of due process, a recent case in 2010, Nudel v. Flagstar Bank, FSB, 52 So.3d 692 (Fla. 4th DCA 2010) ruled that there was no rule or law that requires a trial court to hear oral argumnet on a pretrial, non-evidentiary motion. Nudel cited Gaspar, Inc. v. Naples Fed. Sav. & Loan Ass’n, 546 So.2d 764, 766 (Fla. 5th DCA 1989) that noted “[j]udicial consideration and determination of a non-evidentiary motion on the basis of memoranda of law rather than oral argument by counsel at a noticed hearing does not constitute an ex parte hearing or a denial of due process”.

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