Sunday, December 20, 2009

Are The Clerk's Filing Fees Unconstitutional?

The clerk of court raised the filing fees for foreclosures based on the amount of the mortgage being sued upon. I think this action violates the Florida constitution. The only way they can be justified is as a user fee. That means there has to be some relationship between the fee charged and service provided. Thus, if you want to use a municipal golf course, you pay a fee. Ditto for the Florida Turnpike, marriage certificates, etc. Governments are given a wide latitude in setting the price for such services and court will rarely quibble with the amounts. But I find the schedule of filing fees for foreclosures to be a different matter. There is absolutely no distinction for filing purposes between a residential mortgage of $100,000.0 and one for $800,00.00. Zilch. None. The procedure is exactly the same and the cost to the clerk is the same. But the clerk charges $1900 for a foreclosure where the mortgage is greater than $200,000.00 and only $401.00 if it is less than $50,000.00. On the other hand if you file a complicated case in circuit court that will take up five files and go on for five years, you pay $401.00. A bread and butter foreclosure that will take four court appearances and a sale date will cost $1900.00. I am surprised an institutional lender has not challenged these fees as a user fee without any rational relationship between the amount charged and service provided. The clerk has simply seen an opportunity to increase revenue by capitalizing on the rise in foreclosures by hitting the banks with what is a tax aimed not to cover additional costs but to raise revenue. I also think these fees are an attempt to dissuade banks from filing foreclosures and work them out in some other way. Regardless, that is not the function of the clerk. Imagine the reaction among the bar if the clerk decided to raise fees for, say, civil rights actions or med mal cases. There would be a suit filed very quickly. But since the nefarious banks are the ones taking it on the chin, no one notices.

1 comment:

  1. How about civil filing fees in general in Florida being unconstitutional as adverse to the constitutional guarantee of unfettered access to the courts?