Florida Modifies Provisions Regarding Foreclosure Proceedings
The legislature of the state of Florida has recently enacted provisions regarding foreclosure proceedings where a defendant has filed for bankruptcy. This bill will be effective as of October 1, 2018.
The new bill, Section 702.12 of the Florida Statutes, essentially allows a foreclosing lienholder to submit a document from a defendant’s bankruptcy case, which will serve as an “admission by the defendant” that he or she intended to surrender the property.
The bill states that a foreclosing lienholder may submit a document that a defendant filed under penalty of perjury in his or her bankruptcy case. This document will be taken as an admission by the defendant, and will create a rebuttable presumption that the defendant has waived any defense to foreclosure if certain conditions are met.
The rebuttable presumption that the defendant has waived any defense to foreclosure will stand if the foreclosing lienholder files documents that show the defendant’s intention to surrender to the lienholder the property that is the subject of the foreclosure. These documents must not have been withdrawn by the defendant. The bill further states that the documents must show that a final order has been entered in the defendant’s bankruptcy case, which discharges the defendant’s debts or confirms the defendant’s repayment plan that provides for the surrender of the property.
Once the bankruptcy documents have been submitted by a lienholder, the bill does not prevent the defendant from raising a defense based upon the lienholder’s action or inaction following the lienholder’s filing.
This bill applies to all foreclosure actions filed on or after October 1, 2018.
Zachary Pearlstein, JD, is a Regulatory Compliance Director with CLA's Mortgage Advisory Division. He joined CLA on January 1, 2014, as part of its acquisition of Bankers Advisory, Inc. Zachary oversees Mortgage Advisory's regulatory compliance team, which focuses on federal and state compliance, fair lending, and the Home Mortgage Disclosure Act (HMDA). He is a graduate of Brandeis University and earned his juris doctor at Suffolk University Law School. He is admitted to the Massachusetts Bar.
Comments are closed.