702.015 Elements of complaint; lost, destroyed, or stolen
574 note affidavit.—
575 (1) The Legislature intends that this section expedite the
576 foreclosure process by ensuring initial disclosure of a
577 plaintiff’s status and the facts supporting that status, thereby
578 ensuring the availability of documents necessary to the
579 prosecution of the case.
Isnt this exactly what the legislature always intends? Of course the legislature wants to balance the promise of due process with the efficiency of the judicial system in maintaining a streamlined foreclosure docket, but is this really the way? If the robosigning debacle was any indication of the manner in which the scales of “foreclosure justice” were tipped, how does this bill prevent the scales from being tipped even more in the favor of the banks?
Something particularly concerning about this bill, which is clearing hurdles like an Olympic runner, is that it “creates a higher standard for the defendant to show cause why a final judgment of foreclosure should not be entered.” Come again? A higher standard for a defendant coupled with an expedited judicial foreclosure process might certainly clear foreclosure dockets, but potentially at the right of a defendant to defend themself in court and engage in meaningful discovery.
Let’s take a look at some of the proposed changes:
1. A Plaintiff is going to have to Establish Possession of a Valid Promissory Note or Authority to Enforce the Note
So a Plaintiff will have to certify physical possession of the original promissory note or to provide sworn evidence to support a lost note. Here’s a thought: If these Plaintiffs were bold enough to either robosign, condone robosigning, or turn a blind eye, why should it be any different now?
2. The Expedited “Show Cause” Procedure:
“The bill creates a higher standard for the defendant to show cause. Under the bill, the defendant shows cause (why the court should not grant final judgment of foreclosure) if the defendant raises a genuine issue of material fact which precludes entry of summary judgment. The defendant’s showing or legal defenses may be raised in a motion, responsive pleading, affidavit, or other papers or in evidence presented at or before the hearing.”
Here’s a thought: A homeowner doesn’t necessarily know what their defenses are, or may be. So while under the current law, a homeowner can file defenses by motion or otherwise and this is enough to get past a show cause hearing, the proposed changes adds a KEY word. Under the proposed changes, such filings by a homeowner only MAY, I repeat MAY show cause. In other words, MAY looks like an important change for a judicial system severely strained by the torrent of foreclosure cases flowing through it.
Shouldn’t it be enough that a homeowner believe they have valid defenses? Are we really going to make a homeowner who has not had any meaningful time for discovery attend what is effectively a summary judgment hearing?
“Attorney Ari Pregen”