Mediation considered as way to deal with foreclosure flood

TALLAHASSEE, Fla. — Mediation would be a good way to expedite a flood of mortgage foreclosures, a task force said Wednesday, but some panel members disagreed on the details in oral arguments before the state Supreme Court.

Florida's courts are trying to cope with more than 290,000 foreclosure cases.

"What this court system has is virtually a tsunami of these filings," said Justice Barbara Pariente.

Most on the high court's Task Force on Residential Mortgage Foreclosures recommended mediation on owner-occupied homes before cases go to court, with lenders picking up the tab. Borrowers would be contacted by phone and mail and asked to participate.

The high court did not immediately act on the proposal.

"The data that the banks have says the earlier in the process you get into mediation, the better and more likely you are to resolve the case," said the task-force chairwoman, Circuit Judge Jennifer Bailey of Miami. She argued for a statewide managed mediation system.

Minority members said mediation should be offered only if ordered by a judge, and the costs — an estimated $750 per case — should be split 50-50 between lenders and borrowers.

Chief Circuit Judge Lee Haworth of Sarasota said borrowers who have the means to pay should have "skin in the game."

The Florida Bankers Association supports that option. Without making a financial commitment to the mediation process, borrowers may try to use it to delay foreclosure, association lawyer Virginia Townes said.

"If the borrower is mediating in bad faith or is really not available or able to engage in a meaningful mediation, then we've wasted the court's time," Townes said.

Bailey said the value of getting the cases decided sooner will outweigh the lenders' upfront costs. If loans can be restructured through mediation, those costs would be included and be paid by the borrowers.

Rebecca Storrow, alternative-dispute-resolution director for the 15th Circuit Court in Palm Beach County, argued for the traditional court-ordered mediation system. She said it is working well in her system and is cheaper than the task force's proposal.

The justices also heard arguments on proposed emergency rule changes.

One would require lenders to verify they hold mortgages before going forward with cases. Many lenders initially say they have lost the note, which can result in wasted court time because the notes are found in nearly every case, Bailey said.

She said the rule would tell lenders to double-check before filing. Townes argued it would be a costly and needless step.

The other contested rule would require lenders to get a court order to cancel a foreclosure sale. Now all they have to do is not show up at the sale.