Lenders May Still Have to Participate in Foreclosure Mediation in Florida
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In response to the mortgage foreclosure crisis, the Supreme Court of Florida established a statewide mandatory mediation program for residential mortgage foreclosures. Due to the mandatory mediation program being largely unsuccessful, the Supreme Court of Florida terminated the program on December 19, 2011. However, lenders should be aware that judges are still able to refer foreclosure lawsuits to mediation on a case-by-case basis, with or without a referral request to mediation. § 44.102(2)(b), Fla. Stat.; F. R. Civ. P. 1.700(a).
Check the Local Foreclosure Mediation Requirements
Although there is no longer a statewide mandatory mediation program, lenders should check the mediation requirements in the circuit court where the foreclosure lawsuit is filed. In the Supreme Court of Florida’s administrative order, dated December 19, 2011, which terminated the statewide mandatory foreclosure mediation program, it noted that circuit court judges are permitted to adopt any measures to manage residential mortgage foreclosure lawsuits, including referral of foreclosure lawsuits to mediation. Specifically, the Supreme Court of Florida stated:
Circuit chief judges are vested under article V, section 2(d), Florida Constitution, with responsibility for the administrative supervision of their circuits. Section 43.26, Florida Statutes, authorizes circuit chief judges “to do everything necessary to promote the prompt and efficient administration of justice.” These authorities empower the circuit chief judges to adopt or employ any measures permitted by statute or court rule to manage pending and new residential mortgage foreclosure cases, including referral of cases to mediation on a case-by-case basis pursuant to section 44.102, Florida Statutes, and Florida Rule of Civil Procedure 1.700(a).
In re: Managed Mediation Program for Residential Mortgage Foreclosure Cases, AOSC11-44 (Fla. 2011) (emphasis added).
For example, in response to the termination of the statewide mandatory mediation program, the Tenth Judicial Circuit (Hardee, Highlands, and Polk counties), enacted its own homestead residential mortgage foreclosure mediation requirements. In the Tenth Circuit, the clerk of the court is required to attach a notice regarding the availability of mediation to all summons to be served on defendants in a foreclosure lawsuit. Either party may file a motion to the court within 30 days of service on the borrower of the mortgage foreclosure lawsuit, requesting that the lawsuit be referred to mediation. The court strongly encourages that lenders, whether private lenders, commercial institutions, or mortgage servicing companies, enter the mediation process with their borrowers before filing a foreclosure lawsuit.
Although there is no longer a statewide mandatory foreclosure mediation program, lenders must be aware that they may still be required to participate in mediation. Circuit court judges can refer foreclosure lawsuits to mediation on a case-by-case basis. In addition, it is important to check the rules in the circuit court where the foreclosure lawsuit is filed because some circuits may have enacted their own foreclosure mediation requirements.
- Austin B. Calhoun, Esq.
- Melissa G. Murrin, JD Candidate