Although the courts are not requiring the plaintiff to mediate prior to filing a foreclosure, mediation is still an obstacle the plaintiff must overcome before proceeding to judgment. It should be noted that mediation as a requirement in a foreclosure before judgment will be entered has no procedural basis or precedence in law. Even if foreclosures are tried in equity, the equities must be balanced. A plaintiff whose complaint alleges nonpayment who is then forced to bear the costs of mediation and risk dismissal for not attending strikes a clear imbalance.
Furthermore, defendants who state they "can't reach lenders" or "can resolve the (foreclosure) problem" only tell half the story. In many cases, three months or more before a foreclosure is filed, it is the plaintiff attempting to contact the defendant. A defendant who appears at a hearing declaring they are unable to contact the lender usually has only recently made that attempt and by that time, it has been eight months to a year or more since they have made a payment toward their mortgage. Moreover, in most instances condominium and homeowners' associations also are not being paid nor are the property taxes. If not paid, these entities can foreclose. Also, statistics show well over 60 percent of all loans modified default for a second time or more.
There are some circuits that have found ways to manage the large volume without mediation. One suggestion might be that foreclosure judges come together, similar to a judicial conference, and share ideas regarding dealing with the volume and the issues associated with lenders' attorneys.
Whatever the end result, good or bad, the outcome will fall squarely on the shoulders of the judiciary.
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|Publication:||Florida Bar News|
|Date:||Jul 15, 2009|
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