Reese: Regarding HB 145, "Florida Mortgage Collection Fairness Act," the remedies seem too broad and out of place. Paragraph 2(a) seems to be an appropriate subject for FDUTPA, although I am concerned about eroding protections for items offered in the context of a judicial proceeding. I am also not certain that "knows to be false" is the best standard. I can envision significant litigation over the question of what is "known" and whether something known by one department (e.g., the title review department) was known by an attorney making an argument before the judge. Is it "known" if the title review was performed by an outside, but captive, company? The proposed statute does not provide any guidance. Paragraph 2(b) is a breach of contract. The firm is not a party to the mortgage modification agreement between the borrower and the mortgagee, so it doesn't make sense to me to say that a "mortgage collection firm may not . . ." Perhaps the remedy should be attorney's fees, which could be statutorily imported, but it is not the firm that violates Paragraph 2(b), it is the mortgagee. I also have a concern that mortgagees will say that the "agreement" was not a "bona fide mortgage modification agreement," because of language that they will insert that says that they can back out of the agreement (thus, with no mutuality, rendering the agreement either voidable or void). This simple addition to the agreement would render this provision of the statute useless. Paragraph 2(c) has several problems. The mortgagee cannot "retake" what it never had. Furthermore, if it were to do so, it certainly would not be deceptive. At best, it is unfair. Again, how can the firm violate Paragraph 2(c)? The mortgagee takes possession, the firm does not. This "violation" does not meet the condition that the firm must have violated Paragraph 2. There should also be a savings clause: It should be absolutely clear that, if a foreclosure judgment, sale, and certificate of title are vacated, then the taking of the property (and current possession) by anyone pursuant to the issuance of the certificate of title that is now vacated does not constitute a violation of this provision, unless the mortgage collection firm violated Paragraph 2(a) in order to procure the now-vacated judgment I would also be in favor of more specific remedies for a violation of Paragraph (2)(c). Perhaps the statute should provide for owner's moving expenses (both out of and back into the subject property), rental and related costs, reimbursement of damages for any rental agreement that the owner must breach in order to be able to move back into his house, etc. These may (or may not) all be "damages" under FDUTPA, but the improperly displaced owner should be able to bring his list of expenses to a judge without the need of an attorney, and the judge should know for what basic expenditures the owner is entitled to receive reimbursement. The owner will be entitled to attorney's fees if he retains an attorney, but he probably does not have an attorney, and he probably will not know that he is entitled to reimbursement for his attorney's fees under the Statute. Regarding HB 149, regarding website notice, this is a clear attempt to make it less likely that owners will be notified of foreclosures. Given an epidemic of Affidavits of Diligent Search in which foreclosing firms say they have conducted diligent searches to find and serve owners when they clearly have not, there are significant constitutional concerns about making it easier to hide suits from owners. Publishing in a newspaper allows for some (albeit small) possibility that someone will see the notice and inform the owner. The website approach undermines any chance of that. Regarding HB 65, the "Foreclosure Debt Claims Act," is there a reason why homestead property is not defined by reference to the meaning of the term under the Florida Constitution? I am not sure why we need yet another definition of homestead. Why is "Corporation" not defined, and why is it not capitalized in Paragraph (3)? Is there another corporation involved in administration? Why is "waiver of deficiency," as used in Paragraph (5), not defined? Can it be conditioned? On what? Assuming that all the funds have not been disbursed and the program funds depleted, for how long after settlement may a claim be filed pursuant to Paragraph (6)? Summary: I acknowledge the evils that these Bills are aimed at combatting, but I do not think that any of these addresses the concerns with sufficient specificity. With no offense meant to the drafters, I also believe that they could be crafted better. Scott E. SCOTT GOLDEN, ESQUIRE GOLDEN & LaNEVE 644 Southeast Fourth Avenue Fort Lauderdale, Florida 33301 Tel: 954-764-6766 Fax: 954-764-6789 This document may contain privileged and/or confidential information. If you are not the addressee, please immediately telephone the sender at (954) 764-6766 (collect, if long distance) and delete this document from your computer. Do not print the document. If you are not the addressee, printing, keeping, copying, or disseminating a copy of this document is strictly prohibited. From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr. Sent: Friday, October 07, 2011 10:45 AM To: RPPTL constructionlaw Subject: [RPPTL-constructionlaw] Foreclosure-Related Bills Filed CLC Members, We have been asked by the RPPTL Section leadership to provide comments on the attached proposed legislation, if we have any. Please let me have your comments no later than next Thursday, October 13, so that I can incorporate them into a consolidated response. Thanks, Reese Reese J. 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