Friday, June 28, 2013
Effective July 1, 2013 in 6th Circuit
FFor each residential mortgage foreclosure case, the Plaintiff/Lender’s attorney must:
a. File a verified complaint in accordance with Florida Rule of Civil Procedure 1.110(b) and §702.015, Fla. Stat. (2013).
b. File with the complaint a verified Form A - Plaintiff’s Certificate. If the case involves multiple plaintiffs, only one Form A - Plaintiff’s Certificate must be filed. The Form A - Plaintiff’s Certificate, which must be used, is Attachment A to this Administrative Order. Previous versions of Form A must not be used. The forms and information needed by the Plaintiff/Lender should be listed in Form A and uploaded to the web enabled information platform maintained by the Foreclosure Program Manager. The forms should not be filed with Form A and are not required to be served with Form A.
c. File with the complaint a Form B - Notice to Homeowner, which contains information for the homeowner on mediation, information on how to request mediation, the options that might be available at mediation, and other resources for the homeowner. Form B – Notice to Homeowner, is Attachment B to this Administrative Order. Previous versions of Form B must not be used.
d. Within one business day of the assignment of a case number but not later than five business days after the filing of the foreclosure case, electronically upload to the web enabled information platform maintained by the Foreclosure Program Manager, a verified Form A, with the forms needed by the Plaintiff/Lender; the case number, including the section judge number; and the contact information for the Plaintiff/Lender and the Defendant/Borrower, including telephone numbers and email addresses if known.
2. The Clerk of the Circuit Court shall not issue a summons in a residential mortgage foreclosure case until a Plaintiff/Lender files a verified complaint, a Form A – Plaintiff’s Certificate, and a Form B - Notice to Homeowner.
3. For every residential mortgage foreclosure case filed, the process server must note on the return of service that the summons was served with the complaint, Form A – Plaintiff’s Certificate, and Form B - Notice to Homeowner.
A. Residential Mortgage Foreclosure Cases
1. Any party may file a Motion for Mediation of a residential mortgage foreclosure case in accordance with section 44.102, Florida Statutes, and Rules of Civil Procedure 1.700- 1.730. Attachment F-1, Plaintiff/Lenders’ Motion for Foreclosure Mediation, or Attachment F-2, Defendant/Borrower’s Motion for Foreclosure Mediation may be used to for that purpose. Residential mortgage foreclosure cases referred to mediation will be referred to Mediation Managers, Inc., the Court’s contracted residential Foreclosure Program Manager.
2. For every residential mortgage foreclosure case where a party files a Motion for Mediation or the Court on its own motion decides to order a case to mediation and notifies the Foreclosure Program Manager accordingly, the Foreclosure Program Manager must:
a. Prepare an Order of Referral to Mediation and provide it to the Court along with a Case Status Sheet as directed. A sample Order of Referral is Attachment C to this Administrative Order. The Order of Referral may be modified by the Court without amendment to this Administrative Order.
b. If issued by the Court, provide a copy of the Order of Referral to the Plaintiff/Lender and Defendant/Borrower. Service may be made by e-mail in accordance with Rule of Judicial Administration 2.516.
c. Assign a mediator unless the parties:
(i) notify the Foreclosure Program Manager in writing within 10 days of the service of the Order of Referral that they have agreed upon a mediator other than through the Foreclosure Program Manager, or
(ii) file a joint stipulation with the Court with a copy to the Foreclosure Program Manager requesting to opt out of mediation.
As permitted by Rule of Civil Procedure 1.720(j) the appointment of mediators to foreclosure cases will not be by strict rotation, but rather will be assigned by the Foreclosure Program Manager. Only certified circuit civil mediators who are trained in mortgage foreclosure cases may be assigned by the Foreclosure Mediation Program.
d. Encourage the Defendant/Borrower to participate in voluntary financial counseling.
e. If the Defendant/Borrower does not have an attorney, inform the Defendant/Borrower of his or her right to consult with an attorney and also advise of the availability of pro bono, lawyer referral, and legal aid services.
f. Explain mediation procedures to the Defendant/Borrower, time limits for participation in mediation, and the consequences of non-compliance.
g. Collect the mediation fee of $650 from the Plaintiff/Lender, except as otherwise provided in the Order of Referral.
h. In order to prepare for mediation and reduce obstacles to communication in mediation, and consistent with Florida Rule for Certified and Court-Appointed Mediators 10.220, within 30 days from service of the Order of Referral,
(i) confirm with the Plaintiff/Lender that the only forms and documents needed by the Plaintiff/Lender to participate in mediation were identified in Form A. If additional information or forms are needed by the Plaintiff/Lender to participate in mediation, convey that information to the Defendant/Borrowers and their attorney, if any.
(ii) obtain from the Defendant/Borrowers or their attorney, if any, all the forms and information required by the Plaintiff/Lender that are necessary to conduct the mediation.
(iii) submit the forms and information provided by the Defendant/Borrowers to the Plaintiff/Lender.
(iv) if the Defendant/Borrower submitted Defendant/Borrower’s Request for Plaintiff/Lender’s Disclosure for Mediation, which is Attachment D to this Administrative Order, obtain the information from the Plaintiff/Lender and provide it to the Defendant/Borrower.
These preparations for mediation may be done in person, by telephone, or by electronic submission as determined by the Foreclosure Program Manager. The Foreclosure Program Manager must provide the forms and information by uploading them to a secure web platform, by encrypted email, or by other secure means to protect the confidentiality of the information.
i. Within 30 days from the submission of the required documents to the Plaintiff/Lender, conduct a mediation conference. If the Plaintiff/Lender requests additional information that was not identified in Form A or in subsequent communications to the Foreclosure Program Manager, do not begin the mediation conference but reschedule the mediation conference.
j. If the Plaintiff/Lender fails to appear at the mediation conference, or appears at mediation but requests additional information that was not identified in Form A or in subsequent communications to the Foreclosure Program Manager, assess a $200.00 rescheduling fee.
k. Facilitate arrangements for the Plaintiff/Lender’s representative to appear by telephone at the mediation conference if authorized by the Court in the Order of Referral.
l. Ensure that the mediator’s report is timely submitted to the Court;
m. If the Defendant/Borrower has obtained a stay of the foreclosure action from the United States Bankruptcy Court, suspend activities under the Order of Referral. When the stay is lifted, continue with the mediation process.
n. If the Defendant/Borrower does not timely provide the information necessary to participate in mediation or does not appear at mediation and does not cooperate in timely rescheduling the mediation, submit a Notice of Defendant/Borrower Nonparticipation in the Foreclosure Mediation Program to the Court, which is Attachment E to this Administrative Order.
o. If the Plaintiff/Lender does not timely provide the forms and information necessary for mediation, does not provide the Plaintiff/Lender’s Disclosure for Mediation, or does not appear at mediation and does not cooperate in timely rescheduling the mediation, prepare an Order to Show Cause for the Court as directed.
p. Prepare statistical reports to the Court as required.
q. Notify the Court as directed of all cases where a Notice of Defendant/Borrower Nonparticipation was filed and all cases that reached impasse at mediation.
3. The Plaintiff/Lender, Foreclosure Program Manager, information technology provider, and any other third-party vendor must keep confidential all personal financial information and any other protected information disclosed by the Defendant/Borrower. This information may not be released except as authorized or permitted by federal or state law, or with the written consent of the Defendant/Borrower, or as authorized by the Court. Any violation of this provision will subject the violator to all available civil and criminal sanctions.