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.

The foreclosure process is in shambles thanks, in part, to the substitution of county clerks or other registrars with the Mortgage Electronic Registration System (MERS) and the transition from reliance on pooling and servicing agreements (PSAs) as evidence of title to reliance on post-foreclosure sale assignments. MERS sacrificed accuracy for efficiency, allowing the practice of robosigning to run rampant. As a result, many false documents were filed, often resulting in the transfer of bad title. In U.S. Bank National Ass’n v. Ibanez, the Massachusetts Supreme Court held that while post-foreclosure sale assignment documents did not act as evidence of clear title, the PSA did act as an element of proof of transfer. To prevent wrongful foreclosure, fraudulent activity, and rampant errors in the mortgage recording and foreclosure systems, this Article recommends that courts should follow in line with Ibanez and require an original or copy of a document executed at the time of the transfer transaction to prove clear title; courts and attorneys should not rely on assignment documents; sanctions should be brought against violators; and legislation should be passed that instructs the mortgage industry on how to secure good title and creates penalties for false or fraudulent documents.

A great number of homes in Florida are subject to the rules of homeowners’ associations (HOAs). HOAs have the authority, pursuant to their recorded declarations, to establish HOA rules and powers and, perhaps most importantly, to level assessments. Given the recent economic downturn, more homes than ever are being foreclosed upon and falling into the hands of financial institutions and lenders, and many of these properties are subject to unpaid assessments from HOAs. Liability for such assessment can sometimes survive the transfer of title through foreclosure and post-foreclosure sale; however, determining the amount of unpaid assessments owed by a new homeowner to an HOA can be quite difficult. This Article outlines the foundations of liability for assessments, the depth of assessment, and the extent of HOA powers regarding such assessments. It also analyzes the inherent conflict between HOA declarations and the Florida statutory provisions regarding HOA assessments. Because a Florida statute now permits joint and several liability amongst subsequent mortgagees or assignees with regard to unpaid HOA assessments, it is unclear whether financial institutions can limit their liability for unpaid HOA assessments through the HOA declaration itself, or whether the statute somehow alters the legal landscape. It is this paradoxical dynamic, created by the failure of a previous mortgagee to pay debts owed to both the lending institution and the HOA, that forms the backdrop for this problem, and for which this Article seeks to provide much-needed clarification.

The current state of the American foreclosure crisis requires general practitioners to be knowledgeable of the various legal avenues available to assist clients facing foreclosure. In this Article, the Author explains the various consequences of foreclosure, including deficiencies, income tax consequences, and the impact a foreclosure has on one’s credit score. The Author also discusses the difference between judicial and nonjudicial foreclosures, describes foreclosure defense tactics, and examines mediation as an alternative to foreclosure. This Article gives a brief overview of the Chapter 7 and Chapter 13 bankruptcy processes and explains the alternative process of stopping a foreclosure with a deed in lieu, short sale, loan modification, refinance, or redemption. This Article also examines the homeowner’s option of either renting or staying in the foreclosed home and explains the process for setting aside a foreclosure sale. Throughout this Article, the Author highlights the emotional hardship caused by foreclosure and emphasizes the necessity of creating individualized foreclosure defense plans to guide clients through this challenging process and potentially save their homes.

Courts have historically balanced the interests of copyright and new technology, but the standard for allowing defendants in file-sharing copyright actions to be identified, or “unmasked,” must be raised to comply with the First Amendment, Federal Rules of Civil Procedure, and U.S. Supreme Court jurisprudence. Recently, file-sharing software use has become more prevalent, creating tension with copyright interests. This tension resulted in massive litigation, which led to Digital Millennium Copyright Act subpoenas and, more recently, John Doe suits. With this increased litigation comes the problem of when courts can unmask defendants. This Article argues that the standard for allowing defendants to be unmasked is too low and should be raised to require both personal jurisdiction and a plausible basis for relief from the defendant to be identified.

There has been a great deal of inconsistency in the area of arbitration discovery, especially relating to nonparty witnesses. This Article argues that these inconsistencies have led to two unresolved issues: (1) federal courts disagree as to whether the Federal Arbitration Act authorizes nonparty subpoenas outside of an actual arbitration hearing; and (2) properly issued subpoenas to nonparties residing outside of the arbitration site’s jurisdiction may not be enforceable due to a gap between the Federal Arbitration Act and the Federal Rules of Civil Procedure. This Article discusses how recent caselaw has dealt with both of these issues. This Article also explains how these inconsistencies have led to limited, if any, prehearing nonparty discovery, and how properly issued subpoenas to nonparty witnesses may lack enforcement power. This Article suggests that Congress amend the Federal Arbitration Act to expand nonparty discovery and to allow for subpoena enforcement from the district court in a witness’s jurisdiction, and this Article then explores the benefits that may derive from these changes, suggesting that the amendment would make the arbitration process more just and consistent.