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Fla. Justices Consider Mediation for Foreclosures

November 5th, 2009 10:14 AM

TALLAHASSEE, Fla. -- Mediation would be a good way to expedite a flood of mortgage foreclosures, members of a foreclosure task force said Wednesday, but some disagreed on the details in oral arguments before the state Supreme Court.

Florida's courts are currently trying to cope with more than 290,000 foreclosure cases.

"What this court system has is virtually a tsunami of these filings," said Justice Barbara Pariente.

A majority on the high court's Task Force on Residential Mortgage Foreclosures recommended trying mediation on owner-occupied homes before cases go to court, with lenders picking up the tab. Borrowers would be contacted by phone and mail and asked to participate. The high court did not immediately act on the proposal.

"The data that the banks have says the earlier in the process you get into mediation, the better and more likely you are to resolve the case," task force chair Circuit Judge Jennifer Bailey of Miami said in an interview. She argued for a statewide managed mediation system.

Minority members said mediation should be offered only if ordered by a judge, and the costs - an estimated $750 per case - should be split 50-50 between lenders and borrowers.

Chief Circuit Judge Lee Haworth of Sarasota said borrowers who have the means to pay should have "skin in the game."

The Florida Bankers Association supports that option. Without making a financial commitment to the mediation process, borrowers may try to use it to delay foreclosure, association lawyer Virginia Townes said in an interview.

"If the borrower is mediating in bad faith or is really not available or able to engage in a meaningful mediation then we've wasted the court's time," Townes said.

Bailey said the value of getting the cases decided sooner will outweigh the lenders' upfront costs. If loans can be restructured through mediation those costs would be included and ultimately paid by the borrowers.

Rebecca Storrow, alternative dispute resolution director for the 15th Circuit Court in Palm Beach County, argued for the traditional court-ordered mediation system. She said it is working well in her system and is cheaper than the task force's proposal.

The justices also heard arguments on proposed emergency rule changes.

One would require lenders to verify they hold mortgages before going forward with cases. Many lenders initially say they have lost the note, which can result in wasted court time because the notes eventually are found in nearly every case, Bailey said.

She said the rule would tell lenders to double-check before filing. Townes argued it would be a costly and needless step.

The other contested rule would require lenders to cite a reason and get a court order to cancel a foreclosure sale. Now all they have to do is not show up at the sale.

Bailey said 65 percent of sales in Miami-Dade County are canceled that way every month, causing delays for all sales.

Marc Ben-Ezra, a Fort Lauderdale lawyer who represents lenders, opposed the rule. He said it would result in unintended sales if lenders settle with borrowers at the last minute or if delayed by a flat tire.

The sale delays can be costly for borrowers who often mistakenly think they must move out before their homes are sold, Bailey said.

"They're still on the hook for these houses," she said. "They're on the hook for the taxes. They're on the hook for any code violations."

It's also costly for condominium and homeowner associations because no one's paying monthly fees on those properties, Bailey said.

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