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February

24, 2012

E-MAIL

Ms. Barbara Stephens Mortgage Justice P.O. Box 15790 Sarasota, Florida 34277 Re: Committee Substitute for SB1890

Dear Ms. Stephens: At your request I have reviewed the designated bill now pending in the Legislature. I find that a number of provisions in it are good and some are not. My comments are: 1. The change on the statute of limitations from five years to one year for deficiencies is good. It is unfortunately scrambled because it is intended to apparently to provide that relief only for one family to four family dwelling units. That is a definition that has been used in another part of Florida Statutes, but it is an unsatisfactory one because that can apply to one very large house or to four separate houses. The change should apply to everyone who has a mortgage. This attempt is in Sections I, 2 and 7 of the bill (lines 94-143 and 385-423). Unfortunately the mortgagee is given the right to sue on the note that is not limited to the deficiency in lines 398423. Section 7 complicates the one year limitation rather than helping it. The one year limitation should be dealt with in only one section of Florida Statutes and any other references to it should be repealed. Section 3 of the bill gives the mortgagor the right to certain estoppel letters and contains requirements that must be supplied by the mortgagee. This is

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Ms. Barbara

Stephens

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February

24, 2012

helpful. The section also requires the satisfaction of a paid mortgage and does not help because it makes the present simple provision more complicated. It requires the mortgagee who satisfies the mortgage to show the chain of title by which that mortgagee obtained the mortgage. That is good. 3. Section 4 attempts to do the same thing in requiring satisfactions for liens and judgments. There is an unfortunate mixture of liens in the mortgage satisfactions section as proposed. Liens should be covered in Section 4 and mortgages in Section 3 completely in each case without any mixing. Section 5 attempts to delineate the requirements for a mortgage foreclosure complaint. It overdoes the matter. It is limited to structures for one to four families and that is the same unsatisfactory definition as mentioned earlier. It should apply to all mortgage foreclosures. The requirement about allegations that the plaintiff is holder of the note (lines 278-281) is redundant. That is already required. The language in the lines is verbose. The allegations required in lines 282-284 should only be required if the original mortgagor is not the plaintiff. The requirement in lines 285-292 is good, but it is too verbose and complex. Lines 293-319 are excessive in their requirements. The original or a copy of the original promissory should be attached to the complaint as is now required. Requiring the plaintiff mortgagee to execute the affidavit required in lines 308 and 309 is unnecessary. He is pleading evidentiary facts and not the ultimate facts as now required. Section 6 seeks to make mortgage foreclosures absolutely final under certain circumstances and to prohibit a mortgagee from contesting the foreclosure after final judgment and any appeal has taken place even if it turns out the foreclosure is fraudulent. This is bad public policy. If the person foreclosing and selling at a for~closure sale is not the person

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Ms. Barbara

Stephens

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February

24, 2012

who owns the note and mortgage, his offense should not be condoned by the State. The person who buys at sale should still be subject to any relief that the mortgagor has. It is ridiculous to convert what is actually a fraud on the court and the theft of real property to good title. Section 6 should not be adopted. I cannot understand any legislator who wants to validate a fraudulently obtained title to real estate. 6. Section 8 is an attempt to amend a summary mortgage foreclosure procedure adopted some years ago that has been rarely used and should not have been adopted in the first place. It does not make any substantial changes to the law as it currently exists. Nevertheless, it should be repealed. There is no need for a summary foreclosure procedure. The present emergency does not justify and it is a bad thing to effect a remedy to cover a temporary problem. Section 9 purports to eliminate present remedies for persons who have been fraudulently deprived of their foreclosure rights when the owner of the promissory note who files the foreclosure suit is not the true owner. It provides a number of other remedies that the true owner did not contract for. I doubt seriously if it is constitutional. The substitute remedy, for example, in lines 671-684 is ridiculous. In subsubsection (a) nobody will write a surety bond; no bank will issue a letter of credit; and it is difficult to perceive what other security there might be. This section should not be adopted. Section 10 is a new attempt to define abandoned residential real property to make it possible to promptly foreclose on it. This may also be unconstitutional. Florida courts have held for many years that a person's absence from his home does not constitute abandonment of it. This seeks to reverse all of that law and substitute definitions that mayor may not be adequate to cover all situations. It would be bad law and should not be adopted.

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Ms. Barbara

Stephens

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February

24, 2012

If you have any other questions,

please

let me know.

HPT/jab