Homeowners Hit a Bump in Suit Over Court Access

     FORT MYERS, Fla. (CN) – Florida officials do not have to create a special reimbursement account on the chance that they lose a lawsuit over new filing fees homeowners must pay to challenge foreclosure proceedings, a federal judge ruled.



     A new Florida law requires that parties to foreclosure civil actions pay various fees to file a cross-claim. If the value of the pleading is $50,000 or less, the fee is $395. It is $900 when the pleading is valued at under $250,000, and $1,900 for pleadings valued at more than $250,000.
     In a federal class action that calls the statute unconstitutional, several homeowners facing foreclosure proceedings demanded that the state stop imposing and collecting fees, and refund all fees paid.
     They claim the fees violate their due process under the Fifth and 14th Amendments, and that they violate a state law ensuring court access.
     In light of the financial position of those involved in foreclosure proceedings, Florida’s fees are particularly reprehensible, according to the complaint.
     Since claims against state agencies are barred by the 11th Amendment, U.S. District Judge John Steele said last week that the homeowners lack subject matter jurisdiction to sue the Florida Cabinet and the Florida Revenue Department.
     The case will proceed, however, against the remaining defendants, Gov. Rick Scott, Attorney General Pam Bondi, Chief Financial Officer Jeff Atwater and Agriculture Commissioner Adam Putnam.
     With only individual defendants remaining, Steele also struck out claims that would require them to create a separate account that would facilitate potential court-ordered refunds, as well as claims that require a refund of all fees paid under the challenged law.
     Florida law allows claimants facing the filing fee to obtain an indigencey waiver, according to the 23-page decision. Until the homeowners unsuccessfully apply for the waiver, there is no true case or injury, Steele found.
     Since Steele dismissed the claims and defendants without prejudice, the class may raise the issues again in a later filing.
     Though Florida had said the homeowners should specify the counterclaims they seek to assert in foreclosure proceedings, the judge disagreed that this amounts to failure to state a claim. He also disagreed that the action at hand shows the homeowners can still access the courts.

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