[RPPTL-constructionlaw] Foreclosure-Related Bills Filed

Sat Oct 8 15:25:09 PDT 2011

This is not construction law and should be opposed by the CLC.

BARRY KALMANSON

-----Original Message-----
From: Justin Zinzow <JZinzow at zinzowlaw.com>
To: RPPTL constructionlaw <constructionlaw at lists.flabarrpptl.org>
Sent: Fri, Oct 7, 2011 12:24 pm
Subject: Re: [RPPTL-constructionlaw] Foreclosure-Related Bills Filed

HB 145 should really be applicable to both banks and firms given that banks are generally the ones who re-take “possession” of property.  I doubt law firms are actually themselves taking possession or hiring agents to do so.  Further, while it may arguably be appropriate for a bank to take possession of an abandoned property in very special circumstances before judicial approval, it should not just be after 30 days of abandonment.  What does abandonment mean?  Must notice be given?  What proof of abandonment must exist?    

Current common law indicates that even upon entry of a foreclosure judgment, ownership of the property remains vested in the property owner until the certificate of title is issued.  For consistency purposes lenders should not be permitted to take possession pre-judgment without judicial approval (i.e. due process) except in the most unusual circumstances.  

When lenders take possession on these residential foreclosures, many drill out existing locks, break gate access and set new lock mechanisms, and even build large wooden cages over pools or other features.  These actions damage and diminish the value of the property owned by the property owner.  They also interfere with existing contracts for sale and brokerage efforts because access has been changed.  Further, many of our clients have had personal property stolen from their homes by those anonymous bank or law firm representatives or agents who enter without notice.

I really do not believe it appropriate for a lender or law firm to access a property without court permission or written approval from the owner.  Requiring court permission would not increase the burden on the lender or the court, as courts already routinely handle such requests.  The court process would at least ensure due process, which is noticeably absent from the abandonment language in this house bill.

At an absolute minimum, the bill should be clarified to define abandonment precisely for fairness, and indicate that the abandonment language is intended not to create new rights for banks or law firms, but rather, to clarify that re-taking possession of abandoned property is not a violation of FDUTPA; it may very well be a violation of other laws or contracts.  

Justin R. Zinzow | Zinzow Law
Board Certified Construction Specialist
35111 U.S. Highway 19 N.
Suite 302
Palm Harbor, FL 34684                             
Ph: (727) 787-3121
Fax: (727) 787-3231
Website | Bio

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From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr.
Sent: Friday, October 07, 2011 10:45 AM
To: RPPTL constructionlaw
Subject: [RPPTL-constructionlaw] Foreclosure-Related Bills Filed

CLC Members,

We have been asked by the RPPTL Section leadership to provide comments on the attached proposed legislation, if we have any.  Please let me have your comments no later than next Thursday, October 13, so that I can incorporate them into a consolidated response.

Thanks,
Reese

Reese J. Henderson, Jr.
Board Certified Construction Attorney 

707 Peninsular Place
Jacksonville, Florida 32204

Phone (904) 354-5200
Facsimile (904) 354-5256
Reese.Henderson at tritthenderson.com 
www.tritthenderson.com

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