Zacks Wins Foreclosure Appeal

KNZ law is pleased to announce that Florida foreclosure attorney Dustin Zacks has prevailed on an appeal of a foreclosure trial.  In the case of Lurtz v. the Bank of New York Mellon, the Fourth District Court of Appeals ruled that Zacks’ arguments were correct and that a new trial should be held.  The appellate issue revolved around an issue that continually pops up in the foreclosure process in Florida: the setting of foreclosure trials en masse in an effort to accelerate the Florida foreclosure process timeline.

Here, the lower court ordered the case to trial before an answer (the defendant’s main pleading) was filed.  Then, trial was held less than 20 days after the answer was filed.  Under the Florida Rules of Civil Procedure, this was technically incorrect, and trial should not have taken place.  The Fourth District agreed with Zacks’ arguments and his reading of the rules, and ordered a new trial.

This is an important issue for homeowners wondering about the Florida foreclosure timeline and the Florida foreclosure process in general.  Notably, because the rule regarding setting trials has been held to be one in which trial courts must strictly comply, homeowners and their advocates should be entitled to assume that lower courts will follow the rule.  Preparation for trial is obviously hampered when litigants expect trial courts to follow the strict compliance with setting trials.  Thus, when litigants expect the trial court to reset trial for a date in compliance with the rules of civil procedure, they are prejudiced in having to go to trial when judges disregard the rules and proceed on with trial.  This should certainly not be construed as a criticism of any one particular judge; rather, other districts have noted the problem as well.

As we have noted on this blog, one of Zacks’ law review articles compiled empirical data on the externalities of foreclosures.  Studies show that it is vacancies – and not the actual filing or pending nature of a foreclosure lawsuit itself – that breeds crime, blight, and depressed property values.  Thus, legislation and court administration aimed at speeding up the foreclosure process in Florida has the wrong goal in mind.  Speed of the process should not be our goal: keeping families in homes is the only guaranteed eliminator of the ugly externalities of foreclosures.  Thus, we can only hope that legislators, judges, and court administrators will recognize that a blind rush towards a foreclosure auction might feel like the right solution, but it is not good for the community at large.