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Agenda 03/23/2010 Item #10C Agenda Item No. 10C March 23, 2010 Page 1 of 4 EXECUTIVE SUMMARY Recommendation to approve foreclosure-related guiding principles as provided by members of the Collier County Foreclosure Task Force upon request of the Board of County Commissioners in addressing any foreclosure legislation considered in the Florida Legislature. OBJECTIVE: To establish a set of guiding principles supported by the Board of County Commissioners (BCC) as it relates to any proposed foreclosure-related legislation being considered by the Florida Legislature during this current 2010 Legislative Session. CONSIDERATION: As requested by the BCC at the regular meeting on March 9, 2010, some members of the Collier County Foreclosure Task Force reviewed the legislative issues surrounding the foreclosure crisis in the State of Florida. Given urgent circumstances from task request to delivery date, the principles included below were not presented to the entire Foreclosure Task Force for a formal vote. The working group was comprised of four attorneys and four other professionals, including the Collier County Code Enforcement Director who oversees an ambitious and acclaimed Blight Prevention Program. In recognizing more than 50 bills have been filed addressing the issue of foreclosures in this 2010 Legislative Session, the Task Force reviewed several key pieces of pending legislation and deliberated upon the broader topic of foreclosure and its impacts on the Collier County community. That analysis resulted in the following observations and guiding principles for the BCC to apply to any foreclosure legislation under consideration: . The BCC favors protecting and preserving the safeguards afforded by due process and the property rights of individual homeowners, particularly conceming homesteaded property. This maximizes the opportunity to save homes from foreclosure that realistically can be saved, thus stabilizing neighborhoods. In order to protect due process rights, non-judicial foreclosures should not be permitted. The BCC supports the mandatory mediation process ordered by the Supreme Court in December that has not even been implemented in most jurisdictions. It will create two tracks for foreclosures - homestead/occupied and vacant. The vacant properties will be expedited through the system. The homestead properties will be sent to a mediation process where all options available to the homeowner will be negotiated between the borrower and lender in a structured environment. In the jurisdictions where this has been implemented, it has resulted in very positive results. Non-judicial foreclosure may not provide the oversight maintained by the neutral judicial system. Agenda Item No. 10e March 23, 2010 Page 2 of 4 While the non-judicial foreclosure process is supposed to be structured as "voluntary," the concept of "voluntary" is neither realistic nor meaningful. The disparity of bargaining power between a lender and a borrower may preclude meaningful negotiation of a vo luntary aspect to the transaction. The borrower has few choices. The shifting of the burden of proof onto the borrower by making the borrower file suit to stop a non-judicial foreclo.~ure action is a true elimination of due process. Additionally, the cost of filing any such suit may be prohibitive to many borrowers, There is no showing that a non-judicial process would be any faster than the current process. The problem lies not in a "clogged court system" but in the sheer number of foreclosures being handled by a relatively small number oflaw fIrms in the state and the massive volume of delinquent loans being processed by understaffed lenders. It is currently possible to have a judicial foreclosure completed in 102 days under the current methodology, if it is diligently pursued by the lenders. As to the issue of deficiency judgments, we believe in maintaining and preserving in Florida the availability of competitive mortgage products now and in the future for individuals who want to buy and sell real property. If legislative relief could be provided consistent with this principle to homestead, owners/borrowers whose mortgages are substantially 'under water,' this should be explored if it could be fairly and appropriately tailored to address a specific and achievable policy objective that would benefIt not only the individual homeowner, but the entire community. We support the fair and efficient processing of foreclosure cases in the system. There should not be any unreasonable or undue delay that is purely strategic and unrelated to the legal merits of a claim, defense or right to mediation by either the lender or borrower in the foreclosUre process. The BCC believes it is essential that unpaid condominium and homeowners' association fees be addres,~ed in a fair and equitable manner. FISCAL IMPACT: There is no fiscal impact associated with this executive summary. LEGAL CONSIDERATIONS: This item is legally sufficient for Board action. GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with this executive summary. Agenda Item No. 10e March 23, 2010 Page 3 of 4 RECOMMENDATION: To approve the foreclosure-related guiding principles as provided by members of the Collier County Foreclosure Task Force upon request of the Board of County Commissioners in addressing any foreclosure legislation considered in the Florida Legislature. Prepared by Debbie Wight, Assistant to the County Manager Agenda Item No. 10C March 23, 2010 Page 4 of 4 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Meeting Date: 10C Recommendation to approve foreclosure-related guiding principles as provided by members of the Collier County Foreclosure Task Force upon request of the Board of County Commissioners in addressing any foreclosure legislation considered in the Florida Legislature. (Debbie Wight, Assistant to the County Manager) 3/23/2010 9:00:00 AM Item Number: Item Summary: Approved By Leo E. Ochs, Jr. County Manager Date County Managers Office County Managers Office 3/17/201010:35 AM Approved By Jeff Klatzkow County Attorney Date 3/17/201010:44 AM