Lee suit to fight foreclosure fees

10/28/2010 © Ft. Myers News-Press

Three Lee County property owners who say they are being priced out of the court system will file a lawsuit today against top Florida officials, arguing a 2009 law that raised the cost of foreclosure lawsuit filings is unconstitutional.

The lawsuit will be filed in federal court in Fort Myers on behalf of Kevin Camm, Enneis Haney and Yuyuan Lucy Lu, all of whom are involved in foreclosure lawsuits in Lee County.

The three are attempting to file a class-action lawsuit to stop enforcement of the law.

The defendants are Gov. Charlie Crist, Attorney General Bill McCollum, Chief Financial Officer Alex Sink, Agriculture Commissioner Charles Bronson, the Florida Cabinet and the Florida Department of Revenue.

The plaintiffs want the case certified as a class-action lawsuit, and seek an order declaring the statute unconstitutional and orders stopping the collection of the filing fees and giving refunds to those who have paid the fees since the law was passed.

In May, Florida legislators passed a bill that increased foreclosure filing fees from $295 to $395, $900 or $1,900, depending on the value of the property. The idea was to capitalize on the influx of foreclosures and make the court system self-sufficient, instead of relying upon the state’s general revenue fund. The state is bringing in about $44 million per year less than it expected, but officials believe the fund will be able to sustain itself for another two years.

“Here’s a statute that was passed in the heat of the moment and now it’s up to the courts to stand up,” said Fort Myers attorney Marcus Viles, who is representing the plaintiffs.

“It taxes people who are trying to hang on to their home. Plus, $1,900 is an outrageous amount.”

When the law was being discussed in Tallahassee, almost 33,000 foreclosures were being filed statewide per month because of a downturn in the state and national economy.

Most recently, about 20,000 foreclosures are filed each month.

The lawsuit, an advance copy of which was obtained by The News-Press, alleges the law violates a person’s constitutional rights by imposing a filing fee for “exercising the fundamental right to defend oneself in court.”

The lawsuit states that before 2009, Florida didn’t impose a filing fee on compulsory counterclaims, cross claims or third-party complaints.

Counterclaims are filed in defense of a lawsuit, third-party complaints are filed when another, non-sued party is alleged to be involved, and a cross claim is when defendants or plaintiffs sue each other.

“The current filing fees are an attempt by the state of Florida to prevent people from having access to the courts, to interfere with and discourage the filing of compulsory counterclaims and the related third-party complaints, particularly in mortgage foreclosure cases,” the lawsuit states.

Viles said counterclaims are most effective in defense of a foreclosure filing, but with a $1,900 price tag for people who can’t afford their mortgage, it affects people at a low point in their lives.

“The sliding scale fees have a directly disproportionate impact upon the poor and the most-injured, creating an ever greater obstacle to court access,” the lawsuit states.

Reached late Wednesday, Sterling Ivey, a spokesman for Crist, said he couldn’t comment until legal staff could view and research the lawsuit.

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