News for Property Owners? South Florida Courts
Slash Through Foreclosure Backlog
Review | Aril 6, 2015
it comes to foreclosure lawsuits, good news for the judiciary could
spell havoc for property owners.
the wake of the 2008 housing crash that left South Florida one of the
hardest hit regions in the country, courts soon realized how
unprepared they were for the crushing caseload that soon choked their
the height of the crisis, tens of thousands of new foreclosures
flooded the courts each month. In 2009, lenders filed more than 64,000
foreclosure suits in Miami-Dade County alone, and by the end 2010
nearly 82,000 cases were pending in circuit court.
Broward County, judges juggled about 29,000 new lawsuits in 2010, and
the backlog ballooned to more 43,000 pending cases by July 2012.
been a substantial improvement since the dark days of 2009," said
Miami-Dade Circuit Judge Jennifer Bailey, the civil administrative
judge who spearheaded the herculean task of clearing the bottleneck in
the last five years, the court slashed pending foreclosures nearly 80
percent to around 15,000 cases at the end of 2014. From 2009 to 2013,
it closed more than 190,000 cases, or an average of about 38,000
annually. Miami-Dade Circuit Court seemed to hit its stride in 2011
when the closure rate outpaced new filings, disposing of more than
42,000 cases as nearly 19,000 new suits hit the docket.
a case heard is about access," Bailey said. "By and large,
most cases have not had to wait for judicial access since 2010."
new system, buoyed by state funding for case managers to perform
administrative tasks that once fell to judges, means Miami-Dade foreclosures
get to summary judgment in as little as 25 days. In contrast, some
old cases lapped the five-year statute of limitations.
critics say that's not necessarily good news.
the region, foreclosure defense attorneys raise challenges to new
policies aimed at simply cutting the backlog.
Palm Beach County, foreclosure defense attorney Thomas Ice and former
Florida Supreme Court Clerk Tom Hall challenged a proposed rule that
would expand an April 2014 order rejected by the Florida Supreme Court
local rules advisory committee.
Thomas Ice | Melanie
new proposal would speed up foreclosures along with other civil,
family, probate and guardianship cases by considering them abandoned
if not set for a hearing and heard within 90 days. It hinges on the
idea that a docket of more than 20,000 foreclosure cases creates a
crisis requiring drastic measures to prevent depletion of judicial
Ice and Hall argue the proposal would allow the circuit court to
overreach by using an administrative order to automatically dispense
with homeowners' motions as abandoned.
defense attorney Emil Fleysher of Deerfield Beach agrees, saying the
rush to clear the dockets puts property owners on the losing end as
judges push through cases—even over objections from lenders looking
to stop or delay the foreclosures they filed.
is an example of where it's being pushed to the point where it's
ridiculous," Fleysher said. "Apparently nothing matters
other than clearing the docket and getting these cases out of the
the last year, Fleysher has represented homeowners in two cases where
judges denied lenders' attempts to stop foreclosure actions.
one mortgage transfer case, Deutsche Bank unsuccessfully filed a
motion to block a foreclosure sale after Boca Raton homeowner Mauro
Guillermo showed proof of a mortgage modification.
have never been so disgusted and frustrated. These people are not just
case numbers clogging a docket. They are real people with real
problems doing their best to turn things around," Fleysher said.
"Foreclosure filings are down across the state, the backlog of
foreclosures is a sliver of what it used to be, and it's time to start
treating struggling borrowers like human beings again."
documents show Guillermo got approval on Nov. 5 from Deutsche Bank
for a trial loan modification agreement. He made payments from
December to January, and got approval for a final modification Feb. 6.
it was already too late.
Bank won a final judgment the previous September that paved the way
for a foreclosure sale.
said he filed a motion to continue or postpone the trial because of
the pending loan application, but that motion did not appear until
nearly 5 p.m. on the day before trial. He said he got verbal
indication from the bank that it would file a similar motion and that
Palm Beach Circuit Judge Gregory Keyser granted the motion one day
before the trial scheduled for Sept. 30. Thinking there would be no
trial, Fleysher did not attend the hearing, where the bank won final
judgment and set a sales date.
bank filed a motion to cancel the impending sale, but Fleysher said he
never received notice and again failed to appear in court. Deutsche
Bank's attorney, Kathleen McCarthy of Brock & Scott in Fort
Lauderdale, did not respond to a request for comment by deadline.
sale should have never gone through," Fleysher said. "The
judge is so obsessed with pushing this rocket docket."
house was sold to Shay Mayron, according to public records. On March
17, Palm Beach Circuit Judge Richard Oftedal approved Mayron's motion
for a certificate of title and granted an immediate writ of
possession—an order Fleysher described as "devoid of any
compassion" for Guillermo.
is not the law that matters - clearing dockets matters. MSF)
judges like Bailey say courts have a responsibility to move cases
through the system and ensure they don't languish on the dockets.
are overwhelmingly not complex cases," she said. "There's no
reason that anybody would be particularly challenged in getting these
cases to trial."
both sides, relief might come soon as foreclosure cases dwindle in a
rebounding real estate market. Delinquency rates and foreclosure
inventory for residential mortgage loans fell to the lowest levels
since 2007, according to a national survey released in February by the
Mortgage Bankers Association.
effect is already clear in South Florida courts. In Miami-Dade,
lenders filed 10,000 foreclosure suits in 2014—about one-sixth the
volume from just five years earlier. And in Broward County, there were
fewer than 6,700 new filings last year, about one-third the new
caseload in 2012.
backlog could also shrink this year once the Florida Supreme Court
weighs in on the question of continuing default and the state's
five-year statute of limitations for mortgage foreclosures.
attorneys like Fleysher say homeowners continue to get steamrolled as
judges feel pressure to meet state mandates to clear their caseload.
this first started there was a real need for it, but at this point
it's gotten so carried away," he said. "The court is not
helping. It's making the problem worse. When an agreement has been
reached, there should be some common-sense carve out."