A.G. Gancarski
House Bill 471, filed in the Florida House on Tuesday, would expand the rights of lienholders in foreclosure actions.
Jacksonville Republican Rep. Jay Fant, a banker and lawyer by trade, filed legislation that would allow documents from bankruptcy cases to be used as evidence in foreclosure actions.
Fant’s bill would create a new section of Florida Statute: “Section 702.12: Actions in Foreclosure.”
That section would allow a lienholder to submit any document from a mortgagee’s bankruptcy case that suffices as an “admission by the defendant” that he or she intended to surrender the property.
Provided that the document in question isn’t withdrawn, it can — when combined with a discharged bankruptcy — serve as a “rebuttable presumption” that the defendant has surrendered interest in the property and waived any defense to the foreclosure.
Fant tells us that the bill closes a “wildcard exemption.”
When people file for bankruptcy in federal court, they can get the right to hold additional assets in exchange for agreeing to surrender their house.
The wildcard exemption allows them to retain $4,000 in assets, Fant said, rather than just $1,000.
A problem is then created when the bankruptcy filer fights the foreclosure in state court.
Compounding the deception: often people will even rent out the house or property being foreclosed upon.
This bill, says Fant, would close that loophole.
The party being foreclosed upon would have legal recourse according to this statute.
The defendant could raise “a defense based upon the lienholder’s conduct subsequent to the filing of the document filed in the bankruptcy case that evidenced the defendant’s intention to surrender the mortgaged property to the lienholder.”
We reached out on Tuesday morning to Rep. Fant for his reasons for filing this bill, and will update when we hear back.
