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Foreclosure Courts – Death Panels for Troubled Homeowners?

On Behalf of | Sep 8, 2010 | Firm News, Home Foreclosure

When Florida’s legislators voted to fund foreclosures-only courts, did they know they would be dubbed “rocket dockets?” Or that homeowners defending foreclosure actions would be pleading their cases to retired judges who were more focused on clearing the backlog than verifying documents and examining evidence? The courts, which got under way in July, have drawn much criticism and, notably, have sparked an investigation by the attorney general’s office.

The most important question in a foreclosure is, “Who owns the note underlying the mortgage?” Unfortunately, that is sometimes the most difficult question to answer, thanks to the banks and investment firms that bundled mortgages and sold them as securities. With each transfer of ownership — and during the housing boom there were many — identifying the owner of the note became more and more difficult. Only the owner of the note can foreclose.

Attorneys for homeowners contend that lenders are falsifying documents and claiming ownership of the note with flimsy proof. Worse, defense attorneys say the retired judges presiding over these foreclosure courts have little or no experience with the foreclosure process and have a “just keep them moving” mindset — they’re there to clear the backlog, fast.

Foreclosure is a difficult process to adjudicate, and lenders and their attorneys seem to be taking advantage of the judges’ lack of experience by presenting them with bewildering paperwork and incomprehensible records from banks or loan servicing companies that have either failed or been acquired by larger lenders. More often than not, according to critics, the judge rules in favor of the (bogus) lender after being dazzled with a sheaf of official-looking documents.

Foreclosure defense attorneys also complain that the judges show up for their shifts and don’t bother to look at the files for the cases they’ll hear that day. “They don’t even look at the motions,” said a Jacksonville legal aid attorney. “You get a five-minute hearing. It’s a factory.”

The judiciary disagrees. In Broward County, for example, “There are more assets devoted to those three foreclosure divisions … than to any other division,” according to the chief judge for the 17th Circuit. Among those assets are case managers and others to help the public. “The people,” he said, “get fully, fully heard.”

Source: The New York Times, “Florida’s High-Speed Answers to a Foreclosure Mess,” Gretchen Morgenson and Geraldine Fabrikant, September 4, 2010

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