Magistrates to Handle Florida Residential Foreclosure Actions – Florida Supreme Court Amends Rule 1.490 and Significantly Changes Landscape of Residential Foreclosure Litigation

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It is no secret that Florida consistently ranks among the worst states in the union in regards to the mire of the residential mortgage foreclosure case backlog. From 2007 to 2013, approximately 1.5 million foreclosure cases have been filed in Florida alone. As of February 2013, nearly 360,000 cases remained pending in Florida courts, and an estimated 680,000 new cases will be filed within the next three years. Clearly, something had to give.

On May 3rd, the Florida Senate passed H.B. 87, and shortly thereafter on May 9th, the Florida Supreme Court issued an order amending Rule 1.490 of the Florida Rules of Civil Procedure to allow general magistrates to handle foreclosure actions. The changes are effective as of the publication of the order.

General magistrates are members of the Florida Bar that have been appointed by the circuit Court to conduct civil hearings and prepare reports containing findings of fact, conclusions of law, and recommendations to the referring Judge, who reviews the magistrate’s report before it becomes final. Prior to the amendment of Rule 1.490, general magistrates were primarily utilized in family, juvenile and probate court matters. With the amendment of Rule 1.490, the chief judge of each judicial circuit may now appoint magistrates to handle “all actions and suits for the foreclosure of a mortgage on residential real property.”

Prior to the amendment of Rule 1.490, express consent by both parties was required for a matter to be referred to a magistrate. Consent for referral to a foreclosure magistrate, however, is now implied, absent a timely objection by either party. Thus, if a homeowner does not file an objection to the referral within ten days,[1] their case will automatically be assigned to a magistrate. Although language notifying both parties of the right to have their case heard by a judge must be included in every referral order, the small window to object ensures that this implied consent will be a tremendously contentious issue going forward.

An interesting provision in the amended Rule is that foreclosure magistrates cannot practice the “same case type” of law in the county where they work as they are appointed. While this portion of the amendment was certainly enacted to prevent conflicts of interests (as magistrates are bound by the same grounds for disqualifications as judges), the measure narrows the pool of qualified candidates to attorneys who (a) no longer practice foreclosure law, or (b) have never practiced foreclosure law in that jurisdiction.

Because the amendments were passed without a formal comment period, the deadline to submit written objections to the new procedures is July 8, 2013. These amendments represent a significant change in the landscape of foreclosure practice in Florida. The Florida Banking Law Blog will continue to monitor any developments as they arise.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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