This Article explores a question at the heart of tax exemptions for families under the Florida Constitution: what is a “family unit?” The Florida Statutes give no answer. So, does being married automatically make a family under the Constitution? How can a couple determine whether their love life, or marriage plans, might interfere with increasingly valuable tax exemptions? How should property appraisers decide such an intimate issue? To answer these questions, this Article first introduces the term “family unit,” and argues that it must be clearly defined by the legislature to ensure equitable administration of exemptions. Next, the Article discusses the origins of the “family unit” requirement and the term’s potential interpretations. Third, the Article addresses how lacking a standard definition can cause inequities in the system. Fourth, the Article summarizes the Attorney General Opinions and recent circuit and appellate cases on the subject of separate family units. Finally, the Article offers three potential resolutions to the current ambiguity surrounding the term: abolishing all property tax exemptions; defining a “family unit” as a married couple; and proposing a model statute defining “family unit” with specific factors for property appraisers to use when determining whether a “family unit” exists.
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Cyberbullying, the use of technology to engage in bullying, has become a growing problem among adolescents throughout the country. This Article looks at the rising issue of cyberbullying and how it is negatively impacting children and adolescents nationwide. Reacting to the cyberbullying issue, Florida passed Jeffs Law, which requires that all schools have a policy prohibiting bullying and harassment through the school’s computer systems. The Author argues that Jeffs Law by itself is inadequate because it only addresses bullying that occurs on school grounds or through the school’s computers or computer networks. To more efficiently address the growing cyberbullying problem in Florida, the Author provides a new approach that includes education-based initiatives, amendments to Jeffs Law as well as the Communications Decency Act, and a holistic approach that includes parents and educators to address the problem as a community.
The Florida Supreme Court’s 2010 decision in Browning v. Florida Hometown Democracy, Inc. provides an ideal study of the efficacy of issuing non-precedential written opinions. Browning involved the Florida Legislature’s adoption of a petition-signature-revocation statute that was enacted against the backdrop of fraud allegations permeating Florida’s election process. Due to tight time constraints, the Florida Supreme Court summarily affirmed, without a written decision, the First District Court of Appeal’s holding. Eight months later, the court issued a thirty-four page, three-justice plurality decision, with one justice concurring in the result only and two justices dissenting.
In this Article, former Florida Solicitor General Scott D. Makar, who now serves on the First District Court of Appeal, explores the issues surrounding non-binding written judicial opinions in the context of Browning. The Article focus on how judges, particularly appellate judges, must form majority opinions, and whether non-binding published opinions represent a strategic use of limited judicial resources. The Author discusses the additional concerns raised by using concurring-in-result-only opinions, especially when such opinions create uncertainty in the law. The Article then surveys an alternative to issuing non-precedential written opinions through affirming lower court decisions without providing a written opinion, and the Article discusses the attendant consequences and scholarly criticisms of both approaches.
Since the 2000 Bush v. Gore decision, Florida’s voting regulations and uniformity problems have received national attention. In an effort to improve voting mechanisms at the local level, a political action committee called Sarasota Alliance for Fair Elections (SAFE) promoted an amendment to Sarasota County’s voting regulation, intending to improve the casting, counting, and canvassing of citizens’ votes. In 2006, Sarasota County voters approved the changes, but the amendment’s validity remained questionable. On appeal, the court found that the Florida Election Code regulates all of the areas that the SAFE amendment sought to regulate, and although no explicit language preempted the changes, the code implied the Legislative intent to reserve voting regulations to the state, not the individual counties. The Florida Supreme Court reversed the decision in part, refusing to recognize preemption absent explicit language in the Election Code. This Article points out the flaws and omissions that led the Court to uphold the SAFE amendment. In its analysis, the Court diminished the value of implied preemption and set aside precedent that may eventually lead to the eradication of implied preemption in Florida. If the Court continues to give less weight to the significance of implied preemption, then the Legislature must learn that adding explicit language to future statutes may be the only way to achieve uniformity in Florida law.
Florida’s Sunshine Law requires all state, county, municipal, or political board or commission meetings to be conducted in public, and further states that no formal action will be considered binding unless conducted at a public meeting. The Eleventh Circuit Court of Appeals recently held in Board of Trustees of the City of Delray Beach and Firefighters Retirement System v. Citigroup Global Enforcement that a government agency was bound by an agreement with a private entity that had not been conducted in public, despite the fact that an affected private citizen would be free to challenge such agreement. In this Article, the Authors draw attention to the fact that this decision conflicts with decisions from the Florida Supreme Court and the Fourth District Court of Appeal. The Authors explore these other courts’ decisions revoking private contracts that were created without meeting the Sunshine Law’s established disclosure procedure. Even when the private entity relies on the agreement to its detriment and there is no other basis for challenging the contract, these courts decided that the taxpayers should not be held accountable for such agreements and, therefore, that the government should be able to enforce the Sunshine Law’s requirements. It remains to be seen whether future court decisions will follow the Eleventh Circuit’s approach or adhere to the pertinent Florida Supreme Court jurisprudence.
When Florida’s real estate market took a nosedive and dragged the economy down with it, the State became a habitat to a storm of real estate foreclosures. Submerged in the flood of foreclosure filings, Florida’s judiciary has been faced with an unprecedented caseload. Responding to this judicial storm, this Article focuses on Florida’s foreclosure litigation process and argues that the courts have maintained lenders’ contractual rights by adhering to the black-letter law, resisting the temptation to succumb to the personal woes of defaulting borrowers. The Author discusses the various defenses and legal theories debtors rely on to retain their homes, including the forefront issue of standing, and details the abusive practices lenders have used to curtail the legal process, such as “robo-signing.” This Article sheds light on the recent modifications to the foreclosure litigation procedure, including the formation of a statewide mediation program and the initiation of changes to the Rules of Civil Procedure. As the judicial storm is far from over, the Author encourages modifications to foreclosure litigation procedures so that the strong emphasis on home ownership in Florida can have a substantial presence in foreclosure actions. Explaining the constitutional dangers of bringing non-judicial foreclosures to the State, the Author advocates for a different approach to judicial foreclosures by applying an existing method of accelerated judicial foreclosures to the residential realm.
To bring foreclosure actions, plaintiffs are required to comply with fundamental standing requirements: plaintiffs must have sufficient stakes in litigation and be real parties in interest. Since 1938, the Florida judicial system has struggled with standing requirements in the foreclosure context; some decisions allude to a requirement that the plaintiff both hold and own the note and mortgage, while others relax traditional requirements and allow ownership to be inferred if a plaintiff holds the note and mortgage. Such differences are exacerbated by the flood of foreclosure proceedings in the wake of the recent real estate collapse as lenders buy and sell mortgages on the secondary market without proper endorsements and assignments. This Article spotlights disparate appellate opinions, illustrates how the Florida judiciary is struggling to stay afloat amid the mass of foreclosure proceedings that engulf the State’s trial courts, and includes a brief discussion of “robo-signing.”
Due to the recent flood of residential mortgage foreclosure cases, Florida Supreme Court Chief Justice Peggy Quince appointed a Task Force on Residential Mortgage Foreclosure Cases to recommend strategies to address the number of residential mortgage foreclosure cases and protect parties’ rights. This Article reviews the Florida Supreme Court’s efforts to utilize a residential mortgage foreclosure mediation (RMFM) model to facilitate the resolution of residential foreclosures. It follows the evolution of the RMFM process, including the Task Force’s creation, the mandate of the RMFM by statewide administrative order, the order’s reformation, and the statewide mandate’s termination by the Florida Supreme Court. The Author analyzes the approaches taken by certain circuit courts and reviews the various attempts to evaluate the statewide program. This Article focuses on the problems and issues that faced the Task Force during the initial conception of the RMFM program, the obstacles encountered by the circuit courts during implementation, the difficulty in evaluating the RMFM programs, the emergence of pre-suit RMFM, and the future of foreclosure cases now that enforcement and adoption of the RMFM program is in the hands of each individual circuit.
This Article investigates the issues stemming from improper securitization of mortgage-backed securities and the effect not only on the banking industry but also on foreclosures brought by securitized trusts. Problems created by subprime-mortgage lending and securitized trusts have led to questions regarding proper standing in foreclosure actions by virtue of the banks’ failure to properly securitize mortgages. These problems affect trusts, which now lack standing to foreclose on loans the trusts thought they owned but in reality do not. Despite the right of a mortgage lender to foreclose on borrowers who have failed to meet their financial obligations, defaulting borrowers have legal protections bestowed on them by the United States and Florida Constitutions. By showing the history of subprime-mortgage lending and the securitization crisis, this Article identifies the fundamental flaws in the mortgage-backed securities market and the key players that helped create these flaws, including Wall Street and the United States Government. Many mandatory steps exist in the process of creating a mortgage-backed security, and if not followed precisely, there are serious ramifications for all parties involved. This Article illuminates that in the majority of cases, not only did the banks fail to follow the proper steps initially, but they have also tried to fix their mistakes after the fact, resulting in further complications and confusion. Without following the proper steps, the banks cannot prove that they have standing to foreclose on defaulting borrowers. This Article concludes that while there is a right of a mortgage lender to foreclose on a borrower that has defaulted, basic legal protections prevent a lender from bringing a cause of action without standing, and if the courts were to fold on these rights in the name of judicial efficiency, this would compromise the judicial system’s integrity.
The Great Recession, which began with the economic downturn in late 2007, has spawned two waves of foreclosures. These waves have demonstrated the contrasting interests of parties to a foreclosure: lenders are primarily concerned with the overall outcome of all security interests, while homeowners are inextricably tied to the outcome of their one particular case. The fundamental differences between these interests make the resolutions of foreclosures difficult. This Article argues that courts should use their equitable powers when deciding foreclosure matters to promote all parties’ interests, minimize the risk of unnecessary foreclosures, and reach alternative resolutions more often. The Authors note that foreclosure can often be excessively harsh, especially when lenders are foreclosing against their own interests or when the foreclosure harms third parties. To prevent harsh foreclosures, this Article suggests that modern courts follow history’s examples of using equitable powers to help keep borrowers in their homes. This Article proposes that courts should use their equitable powers both before and during a foreclosure suit to resolve cases without a court-issued ruling. Before the suit, courts may require additional certifications by the plaintiff, specific loss-mitigation efforts, or an in-person meeting between the lender and homeowner. During foreclosure suits, courts may require a person with settlement authority to be available to the defendant, require parties to attend mediation, or require compliance with HAMP before the court issues a judgment. Courts could also combine several of these solutions. Should all these procedures fail, courts should then weigh the equities of an individual case to determine the outcome. The Authors suggest that by mitigating the harshness of securing a debt with someone’s home, these equitable procedures will bring needed fairness and efficiency to the current foreclosure crisis.