Bondi says Fla. SC should decide foreclosure question

Bryan Cohen Jan. 3, 2012, 2:36pm


TALAHASSEE, Fla. (Legal Newsline) - Florida Attorney General Pam Bondi requested Friday that the Fourth District Court of Appeal certify that its recent decision in a foreclosure case includes a question ripe for consideration by the state Supreme Court.

In Law Offices of David Stern, P.A. v. State of Florida, the court held that Bondi's office lacked authority under the Florida Deceptive and Unfair Trade Practices Act to subpoena records of the Stern firm as part of the case of alleged misconduct in the firm's handling of foreclosure cases.

According to the motion, Florida homeowners have been hit hard by the financial crisis, with the fifth-highest foreclosure rate in the nation in the third quarter of 2011. The foreclosure proceedings have allegedly been marred by the use of invalid assignments of mortgages and notes, often by robo-signing.

"The office of the attorney general asks the court to certify the following question pursuant to Rule 9.330(a): Whether the creation of invalid assignments of mortgages by a law firm and subsequent use of such documents by the firm in foreclosure litigation on behalf of the purported assignee is an unfair or deceptive trade practice under (Florida Deceptive and Unfair Trade Practices Act) which may be the subject of an investigation by the office of the attorney general," Bondi said in the motion.

The FDUPTA is the principle enforcement tool used by Bondi's office to remedy misconduct related to foreclosure. Court rules that apply to this case require certification from the court before Bondi's office may appeal the Stern decision to the Florida Supreme Court.

"The court's opinions in this case and State v. Shapiro & Fishman LLP... have impaired a significant line of inquiry into this pressing problem by holding that the law firms' suspected participation in the creation of such invalid assignments and the firm's use of these documents for clients in the debt collection practice of foreclosure are the practice of law in the representation of a client in litigation and, therefore, not trade or commerce under the FDUPTA," Bondi said in the motion.

Bondi's office currently has six pending cases into law firms for possible misconduct in foreclosure cases.

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