Foreclosure Law Empowering Lenders Could Be 'Game Changer'

, Daily Business Review

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Tony Martinez
Tony Martinez

A new wave of short sales could be part of the fallout from Florida's Fair Foreclosure Act as property owners move to mitigate losses under the law that gives both new powers and new responsibilities to lenders, real estate brokers say.

The law took effect July 1, months after state lawmakers allotted millions of dollars to accelerate cases clogging court dockets.

"This could be a critical game changer," said Tony Martinez, a broker with Xtreme Realty Team in Davie. "We still haven't seen the full effects yet because it's going to take a while for most of these changes to be implemented. But when we do, we'll see a dramatic change in the timeline for foreclosures."

South Florida has been a hotbed for distressed properties for years since the housing crash. Miami ranked among the top 10 metro areas in the country for foreclosures in 2013, according to Irvine, Calif.-based RealtyTrac. Broward County foreclosure filings rose 11 percent in 2013, while December's count was 30 percent higher than November's numbers, public records show.

These cases have been taking years to wind their way through the courts. The statewide average is 944 days, or about 2.6 years. With more than 350,000 cases on dockets across Florida, the state ranks third in the nation behind New York and New Jersey for longest foreclosure timelines, according to RealtyTrac.

But Martinez, who led a recent Miami Association of Realtors conference on real estate opportunities resulting from the Fair Foreclosure Act, said the law gives broader rights to lenders and will likely lead property owners to consider short sales.

Broader Powers

Among the changes is a provision that allows lenders to collect rental income on residential properties—a strategy previously available only for commercial buildings.

"What was happening in commercial is now happening in residential," said Roy Oppenheim, co-founder and senior partner at Oppenheim Law in Weston. "It might accelerate the foreclosure process because if people can't collect the rent, they might not continue to defend the case."

Borrowers also face pressure from lenders' ability to force a defense by filing motions to show cause—a strategy once considered too risky.

"The hope is that banks will use it," said Anthony DiMarco, executive vice president of government relations for the Florida Bankers Association. "In the past if the defendant came in and had any sort of defense, you couldn't use the order to show cause. You had to start the whole process over and go to the back of the line at that point to file suit."

Under the new law, lenders can file foreclosures at the same time they submit these motions without waiting for the outcome of the first hearing. With real estate values rebounding, brokers say lenders now have a new incentive to use this tool.

But while the Fair Foreclosure Act empowered lenders, it also imposed new requirements that slowed filings.

"One game changer: Banks now have to prove they own the note and show how they came to own it and in what capacity they're foreclosing on it," Oppenheim said. "That's a problem for the banks. In the past the law firms didn't know in what capacity their clients were foreclosing. They used to keep it very ambiguous, but that's no longer working."

Pacing Thrown Off

Ice Legal founder Thomas Ice of Royal Palm Beach observed: "There's dual pressure on banks not to file cases. ... This was an environment created by the courts themselves to try all these cases come hell or high water."

Last year when state lawmakers allotted about $31 million to bolster Florida's foreclosure process by adding judges, support staff and technology, the move was meant to speed up the legal process.

It helped ease the backlog as property values pushed upward.

But the new focus on speed wasn't necessarily a good thing for bankers who had already timed the repossession process to avoid flooding the market with foreclosed properties they would have to maintain.

"Banks have lost control of the pacing of their own judgments," Ice said. "Before they could sit on the cases for years until they were ready for sale. But now cases are going to trial even though neither party wants them to go."

For property owners, brokers said, speed is key.

"The clock is ticking," Martinez said. "There's no doubt that it's going to lead to more inventory because people are going to have less time. Consumers have fewer options and are looking for the exit strategy that is least damaging to them in the future. Short sales are least damaging and are still a dignified exit to a difficult situation."

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