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Dear Gov. Scott: HB 87 Foreclosure legislation violates constitution

Blog post   •  May 15, 2013 10:30 EDT

Gov. Rick Scott must decide soon whether he will sign into law a bill designed to speed up the residential mortgage foreclosure process.

Supporters of House Bill 87 say they hope it will help ease a foreclosure backlog and rejuvenate the housing sector. But there is cause for alarm as the bill could push homeowners out of their residences without the due process to which they are entitled.

Real estate attorney Roy Oppenheim sent the following letter to Gov. Scott asking him not to make this bill become the law of the land.

As a practicing real estate attorney for 26 years who represents homeowners in foreclosure, and a national legal commentator for U.S. News and World Report and Yahoo!, I would like to take this opportunity to comment on Florida House Bill 87, which is before you for signature.

Based on my review of the bill and my first-hand experience in various courthouses in the state defending foreclosures, I find the proposed bill highly inappropriate in that it violates the constitutional tenant of Ex Post Facto through retroactive application of the law to rights of residential property owners.

When you vetoed Senate Bill 718 concerning alimony reform and stated that you would not support [the] legislation because it applies retroactively and thus tampers with the settled economic “expectations of many Floridians.” You went on to add that the retroactive nature of the bill “could result in unfair, unanticipated results.”

Florida House Bill 87 would likewise apply retroactively to “all mortgages encumbering real property and all promissory notes secured by a mortgage, whether executed before, on or after the effective date” of the bill.

One such retroactive provision of the bill applies to borrowers who have not defaulted on their loans and who have been wrongfully foreclosed upon. Such parties will lose their legal right to have their homes return to them.

Allowing the bill to apply retroactively to existing mortgages and notes would constitute an unconstitutional impairment of contracts in violation of Article I, Section 10 of the Florida Constitution. If you sign the bill into law, it would unconditionally impair the rights of residential property owners in the state of Florida, and further disrupt the Florida economy by creating uncertainty as to the constitutionality and fairness of the bill.

I thank you for your time and thoughtful consideration.

Roy Oppenheim


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