On June 17, 2013, Governor Rick Scott signed into law House Bill 87, known as Chapter 2013-137, which changes the procedure for the filing and processing of foreclosures by lenders in Florida. In the advent of so much foreclosure fraud committed by Plaintiff banks, and bank’s attorneys, the bill favors the homeowners and requires additional safeguards by the lenders and their counsel when filing foreclosure lawsuits against homeowners.
The law creates Florida Statutes §702.015 that in essence requires additional checks and balance by the lender by their counsel filing suit, in order to move the foreclosure through the court. While once complete, the foreclosure will go through more rapidly than previously, to get it through requires more work and diligence on the part of the lender.
The following is just some of the key changes made with this bill:
- Lender must affirmatively allege in the body of its foreclosure complaint that it is the holder of the original note secured by the mortgage. If not, then they must include paragraphs alleging how it is that it is entitled to enforce the terms of the note (owner, holder, servicer)
- If the party bringing suit has been given authority by the holder to bring the action against the borrower, the complaint must detail the exact authority granted and identify the specific document that grants this servicer the authority.
- When the Plaintiff is the holder of the note, the Note must be attached to the complaint AND there must be a certificate or verification stating that “under penalties of perjury” it possesses the original note and provide specific details as to where it is, the exact physical location of it and Plaintiff’s verification of it.
- If the note has been lost, the Plaintiff must execute an affidavit that “under penalties of perjury” it has been lost or stolen, and include (a) a chain of all endorsements, assignments or transfers of the note; (2) facts showing the Plaintiff is entitled to enforce it; and (3) enclose copies of the note, allonge or other physical receipt of the original note evidencing ownership and possession.
If any of this is missing, the Defendant homeowner is in a great position to file a Motion to Dismiss and have the complaint in foreclosure dismissed for Plaintiff’s failure to comply with law.
Your best defense against foreclosure is to have a knowledgeable attorney review your documents and protect your rights and defenses against the lender before its too late.
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