Mandatory Mediation in Florida
The August 17, 2009, Associated Press article in the OnlineWSJ.com indicates that the Florida foreclosure task force has recommended to the Florida Supreme Court that mediation be required prior to foreclosure of a primary residences in Florida. The task force also recommended that the lenders foot the bill for costs associated with mediation.
While the idea of state-wide mandatory mediation for primary residence foreclosures is good one, it may be impractical.
First, upon motion or request by a homeowner, judges often require mediation prior to a trial. Therefore, if there are true issues to be discussed, it is likely the judge will order mediation anyway.
Second, judges should have the discretion to handle each individual case as they see fit. For example, often the owners are nowhere to be found and cannot even be reached to schedule a mediation. In other cases, where the borrower has absolutely no income, no equity or does not care about trying to avoid a deficiency judgment, mediation is an exercise in futility.
Third, it is important to note the timing of when mandatory mediation would occur. As I understand the recommendation, mediation would occur after the foreclosure suit is filed, and after the parties are served, giving the court jurisdiction to order such a mediation.
Finally, and most importantly, by the time the foreclosure suit if filed, many homeowners have already given up and moved out. The vast majority of foreclosure suits [greater than 90%] are never defended. Often homeowners don’t truly understand that a foreclosure suit is a real lawsuit. Where the summons gives the homeowner 20-days to respond the complaint, the homeowner should talk to an attorney. I can’t tell you how many people Castle Law Group has turned away because they failed to respond to the foreclosure complaint within the time allotted and were subsequently defaulted.
What is needed, far more than mandatory mediation, is an educated public. Homeowners need to be informed of their rights. Avoiding a deficiency judgment, or getting the lender to modify a loan, are legitimate foreclosure defense litigation goals. Homeowners simply need to be advised to see an attorney when they are served with a foreclosure complaint, or any lawsuit for that matter.