Editor's note: This story was originally featured in the March issue of DSNews, out now.
Roy A. Diaz is the Managing Shareholder of SHD Legal Group, P.A. in Fort Lauderdale, Florida. Diaz has been a member of the Florida Bar since 1988. He has concentrated his practice in the areas of real estate, litigation, and bankruptcy. He has represented lenders, servicers of both conventional and GSE loans, private investors, and real estate developers throughout his career with an emphasis on the mortgage servicing industry for over 25 years.
In your day-to-day duties, how do you work to help grow the firm and adapt to the ever-changing industry landscape?
In the current environment, the challenges for the servicing industry are different than those that existed during the mortgage crisis. Volume and timelines were the drivers and created a “process driven” model, which worked well given the high volume of defaults. That model is less effective in the current environment in Florida, which includes more contested litigation. The percentage of foreclosure cases that are defended and litigated shifted from a 2010 low of 2 percent to current rates of approximately 60 percent. That shift leads to two important focus points: quality attorney advocacy and strong capability to manage data.
As to the quality of attorney representation, I have to assure firm attorneys remain fully up to date on the evolving case law that Florida is experiencing. I assure the litigation group is properly staffed with experienced litigation attorneys and paralegals with litigation experience. I monitor defense trends and regularly meet with our attorneys and managers to carefully evaluate the law to properly rebut evolving defense strategies.
From a process perspective, current volume has resulted in transitioning the practice to “milestone processing,” which broadens the scope of responsibility of each portion of the case. This facilitates volume changes, allows for cross training, and assures fluid file management at current low volumes. Reporting technology is critically important to assure high-quality work-product is produced on behalf of firm clients. Data-reporting technology enables me to have critical information related to each step of the foreclosure process at my fingertips. This provides me and the management team the ability to review and manage process flow at every step, identify issues, proactively resolve issues, and assure client expectations are being met. The firm utilizes a Snapshot Report, which I particularly utilize as part of my day-to-day management. The Snapshot Report provides both the firm and firm clients complete access to the client’s entire portfolio with the ability to drill down at a loan level at every juncture.
In the January issue of DS News, you highlighted statute of limitations issues as being a particularly thorny area in Florida litigation. Could you talk more about some of the biggest challenges you deal with in this area or ones you see coming ahead in 2018?
The Florida Statute of Limitations issue has been interesting. It has almost come full circle. I say “almost” because the Florida Supreme Court has indicated that a lender can collect amounts that accrued beyond the five-year Statute of Limitations but has not provided a conclusive opinion. The consensus among the District Courts of Appeal and Circuit Courts is that a lender must adjust a default within five years of filing suit. So until the Florida Supreme Court hands down binding authority otherwise, I work with clients to adjust their loans within the five-year timeframe.
The biggest challenge is working with our clients to create a level of consistency in managing loans impacted by the Statute of Limitations. Firm clients review their portfolios to make decisions about loan adjustments to deduct amounts that may be impacted by the Statute of Limitations. Since the law on this issue is not yet crystallized, working with clients to achieve a consistent adjustment process can be challenging.
Another challenge relates to loans that are involved in service transfers. Clients review service transfer cases for Statute of Limitations issues and determine if these cases need to be re-demanded after boarding and what default date is applicable. In Florida, we are required to certify possession of original collateral, which servicers must receive from prior servicers. Complaints must be verified by the plaintiff, which takes time. As such, we see instances where the adjustment included in the re-demand does not allow adequate adjustment to account for the time to have the matter prepared and filed. This leads to the need to re-adjust and re-demand. I work with clients to help them establish efficiency in their adjustment process.
In recent months, Florida had been dealing with both a hurricane impact and with evacuees coming in from Puerto Rico. What impact is this having on foreclosures in the state, and what other impacts are you seeing?
Two words: “FEMA holds”—absolutely necessary, and absolutely challenging. Having robust data management was critical in managing FEMA holds. Immediately after Hurricane Irma, I communicated with clients and investors with recommendations regarding how to manage the portfolios that were impacted by the FEMA holds. We identified administrative responsibilities that could not be abated during the holds such as Black Knight Inc. reprojection requirements, etc. We identified pending litigation issues that required motion practice and judicial intervention to protect the client. This led to managing Court expectations in areas that were not severely impacted by the hurricane. Some judges were reluctant to abate cases due to a global hold mandate. This led to additional effort and filing pleadings explaining client regulatory and policy requirements. Our discussion of these issues with clients and investors was information they considered in reaching a decision to allow an additional fee to compensate for the services required during the hold period.
What are the cases you’re working on or seeing right now that you think have the potential to have the largest impact on the industry going forward?
Florida defense attorneys are constantly testing new legal theories in defense of foreclosure litigation. As we discussed, Statute of Limitations remains an issue being tested and challenged by defense counsel. Issues related to default adjustments remain very much in play. “Standing” continues to be an issue we see regularly. Under Florida law, the plaintiff must establish that it was the owner of the underlying promissory note and that it was in possession of a properly endorsed promissory note at the time of filing the complaint. Where a note is lost, the plaintiff can proceed under a Lost Note Statute but must establish the transfer history of the note. “HUD Face-to-Face” requirements have been judicially established to be a condition precedent to filing suit on mortgages that provide for the meetings. That process is being raised in defense of cases and where a defendant can prove failure to comply, judgment can be entered on their behalf together with entitlement to prevailing party attorney fees. “Bankruptcy surrender” is an issue that continues to have impact. The theory is that borrowers who surrender their property in a bankruptcy proceeding cannot later defend in the foreclosure proceeding. The rationale relates to the fact that a borrower receives a bankruptcy discharge on bankruptcy and therefore cannot later defend enforcement of the collateral. While the majority of bankruptcy judges agree with cases that support this interpretation of the law, several judges are struggling with that interpretation. The most recent issue relates to challenges to the “boarding process.” Plaintiffs are being challenged on their boarding process. This is a critical area because a proper boarding process is the cornerstone to introducing prior servicer records into evidence at trial. Having a robust boarding process together with adequate training for staff that testify on behalf of plaintiffs is critically important.
What do you wish more people understood about your job or your industry?
Over the past 25 years, I have dealt with historically low foreclosure volume, historically high volume, and back to historically low volume. Throughout those years, I have stayed the course in providing my clients thorough legal representation, which often included telling them things that were difficult to hear and even more difficult to manage. Over time, I have learned to balance the “legal side” of my practice with the “process side.” This results in providing the best possible legal representation in the most efficient and cost-effective way possible. From a client management perspective, servicers categorize foreclosure firms as “vendors,” which at times clouds the fact that the service we provide are “lawyer” services. This often requires varying levels of flexibility in day-to-day vendor management. I have found, and continue to develop, a balance in my practice which I call “lawyer centric.”
About my industry? I believe we are at the new normal, and default activity will not return to past volume in the foreseeable future. This is the time for the industry to retool and improve on processes that require adapting and being proactive with change. Identifying the needs that differentiate judicial practice with non-judicial practice is difficult but necessary. I am seeing tremendous improvement in that regard and continue to work with my clients to effectively manage the challenges they face in the current environment.