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LAW OFFICES

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TRAWICK,
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2033 WOOD SUITE SARASOTA, PLEASE REPLY TO: P. O. BOX 4009 SARASOTA, FLORIDA 34230

FLORIDA

34237 TELEPHONE (941) 366-0660 FAX (941) 366-8941

March 7, 2013

E-MAIL

Ms. Barbara Stephens Mortgage Justice P.O. Box 15790 Sarasota, Florida 34277 Re: Senate Bill 1666

Dear Ms. Stephens: I have reviewed it: 1. SB1666 and I have the following comments about

I have no comments about the provisions relating to employment of retired justices or judges who assist in handling the backlog. I am not sure it is needed because I am aware that such judges have been used in the past and are still being used for that purpose. I have no comment about the change permitting the clerk to publish on the clerk's website. I will comment that this does not expedite foreclosures. The proposed change to 95.11 are good and should be adopted although they do not expedite foreclosures. It is a long overdue remedy in connection with deficiency judgments. Beginning with Section 10 of the bill amendments are proposed to Chapter 702 Florida Statutes. Those relating to the changes in 702.015 will not expedite foreclosures. They impinge the authority granted to the Supreme Court in connection with matters of court procedure by purporting to require certain allegations in pleadings for mortgage foreclosures. Those relating to allegations of the right to sue already

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Ms. Barbara

Stephens

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March

7, 2013

exist. In many cases they are not enforced by the courts. There is no reason to believe the courts will be anymore diligent about enforcing a new statute. 5. The requirements in the amendments to 702.015 are unnecessary for a proper foreclosure. The proposals make the plaintiff plead evidence and that is always improper in a pleading. I particularly refer to lines 704 through 753 of the bill. Copies of the note and allonges will have to be filed with the court in any event before summary judgment or at the trial. Filing them in pleadings is against the spirit of the Rules of Procedure unless some temporary relief is being sought. The rules were devised to simplify procedure, not complicate it. The change in line 752 of the bill is ridiculous. What sanction is the court going to apply? The purpose of verification is to make the statement subject to the perjury statutes. As in the House bill I do not understand why the amendments do not apply to all residential foreclosures. I have no comment on Section 11 of the bill.

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We then come to the most unrealistic section of the bill in creating 702.036. It limits the remedy of a person who owns the note and mortgage after a improper or illegal foreclosure. The remedy by damages against the person who wrongfully obtained the foreclosure and sold the property is a title insurance relief provision. It is probably unconstitutional because it takes away the right that is secured and gives one that is not secured. Any Florida lawyer can tell you that a judgment for money damages is an ineffective remedy because Florida is, as the Supreme Court has said, a debtor's paradise. Many, probably most, money judgments are not collectible. It would be taking a contract right away from its rightful holder. There

Ms. Barbara

Stephens

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7, 2013

is no reason or excuse for this kind of forfeiture. The Legislature should be ashamed to even consider it. 10. The change to 702.06 is unnecessary. the law. That is already

ll.

The needed change to help condominium associations on maintenance liens is not the one proposed in the amendment to 702.10. In any event, this is the wrong place to put it. It should be in the condominium act. That act should provide for payment by the foreclosing mortgagee of all condominium assessments with whatever limitation the Legislature feels is appropriate. I do not think there should be any limitation. If the foreclosing mortgagee has to pay real property taxes (as it does), there should be no principle violation if it is required to pay assessment liens. It is in the best position to protect itself when making the mortgage with the mortgagor. Other condominium members should not be required to pay the obligation of a defaulting unit owner as they now do. Amendments in this bill will not pass scrutiny as a special statutory proceeding. It could stand alone as a special statutory proceeding when it was an additional method of foreclosing a mortgage in a summary manner. I will add that the current statute is very rarely used. I am particularly amused by the amendment beginning on line 1011 explaining what happens when there is insufficient time to complete a matter. That has been the practice for many years in all cases. The amendment is unnecessary. The creation of Section 702.11(1) (a) is a poorly conceived protection. The only thing it can result in is a money judgment. I have already commented above the inadequacy of a money judgment in Florida. This amendment should be in Uniform Commercial Code near 673.3091. It has application beyond mortgage foreclosures. But subsection (1) (a) should be deleted.

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Ms. Barbara

Stephens

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March

7, 2013

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The amendment beginning merely recites existing attorney fee.

on line 1144 of the bill law, except possibly the

This bill suffers HB87.

from the same vices that are contained

in

Except for the provisions for providing extra judges through the use of retired justices and judges, it will not expedite foreclosures. Foreclosures are not currently expedited because the mortgagees do not push them. They do not want to become liable for taxes or maintenance immediately. Accordingly, they file the complaint and lis pendens and sit. The judges do not require them to promptly complete the foreclosures. One mortgagor in Sarasota County told me he has been living in his residence for over five years while the mortgagee fiddled around with its foreclosure. There is no assurance that any retired judge or justice who is appointed will be any more diligent than the ones we have in office. The only way that I have ever heard of to make a judge diligently pursue his calendar is a statute that Kentucky had. I do not know if they still use it. It provided that a judge must certify that he had no matter undecided pending on his desk for more than, as I recall, 30 days in order to get his paycheck. That worked. Neither of these bills should be enacted, except for the parts dealing with limitations on deficiency judgments. It will not expedite foreclosures to make the pleading requirements more complicated. Yours very truly,

"

HPT/jab

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