HB 1437

1
A bill to be entitled
2An act relating to judicial and execution sales of
3property; creating s. 45.0321, F.S.; requiring that, as a
4condition to entry of a final judgment following a
5judicial sale, the lienholder serve notice on the property
6owner of the possibility of relief through the filing of a
7bankruptcy petition; amending ss. 56.021 and 702.10, F.S.,
8relating to the required service of notice of potential
9relief through bankruptcy; conforming provisions to
10changes made by the act; providing an effective date.
11
12Be It Enacted by the Legislature of the State of Florida:
13
14     Section 1.  Section 45.0321, Florida Statutes, is created
15to read:
16     45.0321  Notice of bankruptcy alternatives to judicial
17sales.--As a condition to the entry of a final judgment under s.
1845.031, a lienholder shall serve, together with the original
19process, a notice to the property owner containing the following
20statement in conspicuous type:
21
22A judicial or sheriff's sale of your property that is subject to
23the lien of the plaintiff in this case may occur shortly. Under
24certain circumstances, the United States Bankruptcy Code may
25provide a property owner the ability to retain the liened
26property and reorganize the claimed indebtedness if a bankruptcy
27petition is filed BEFORE the judicial or sheriff's sale occurs.
28In most cases, an individual will be required to complete a
29credit counseling briefing before being eligible to file a
30bankruptcy case.
31     Section 2.  Section 56.021, Florida Statutes, is amended to
32read:
33     56.021  Executions; issuance and return, alias, etc.--When
34issued, an execution is valid and effective during the life of
35the judgment or decree on which it is issued.  When fully paid,
36the officer executing it shall make his or her return and file
37it in the court which issued the execution. If the execution is
38lost or destroyed, the party entitled thereto may have an alias,
39pluries or other copies on making proof of such loss or
40destruction by affidavit and filing it in the court issuing the
41execution. However, the execution may not be issued before the
42judgment creditor has filed and served a notice upon the
43judgment debtor in the same form as required by s. 45.0321.
44     Section 3.  Paragraph (a) of subsection (1) of section
45702.10, Florida Statutes, is amended to read:
46     702.10  Order to show cause; entry of final judgment of
47foreclosure; payment during foreclosure.--
48     (1)  After a complaint in a foreclosure proceeding has been
49filed, the mortgagee may request an order to show cause for the
50entry of final judgment and the court shall immediately review
51the complaint.  If, upon examination of the complaint, the court
52finds that the complaint is verified and alleges a cause of
53action to foreclose on real property, the court shall promptly
54issue an order directed to the defendant to show cause why a
55final judgment of foreclosure should not be entered.
56     (a)  The order shall:
57     1.  Set the date and time for hearing on the order to show
58cause. However, the date for the hearing may not be set sooner
59than 20 days after the service of the order.  When service is
60obtained by publication, the date for the hearing may not be set
61sooner than 30 days after the first publication. The hearing
62must be held within 60 days after the date of service. Failure
63to hold the hearing within such time does not affect the
64validity of the order to show cause or the jurisdiction of the
65court to issue subsequent orders.
66     2.  Direct the time within which service of the order to
67show cause and the complaint must be made upon the defendant.
68     3.  State that the filing of defenses by a motion or by a
69verified or sworn answer at or before the hearing to show cause
70constitutes cause for the court not to enter the attached final
71judgment.
72     4.  State that the defendant has the right to file
73affidavits or other papers at the time of the hearing and may
74appear personally or by way of an attorney at the hearing.
75     5.  State that, if the defendant files defenses by a
76motion, the hearing time may be used to hear the defendant's
77motion.
78     6.  State that, if the defendant fails to appear at the
79hearing to show cause or fails to file defenses by a motion or
80by a verified or sworn answer or files an answer not contesting
81the foreclosure, the defendant may be considered to have waived
82the right to a hearing and in such case the court may enter a
83final judgment of foreclosure ordering the clerk of the court to
84conduct a foreclosure sale.
85     7.  State that, if the mortgage provides for reasonable
86attorney's fees and the requested attorney's fees do not exceed
873 percent of the principal amount owed at the time of filing the
88complaint, it is unnecessary for the court to hold a hearing or
89adjudge the requested attorney's fees to be reasonable.
90     8.  Attach the final judgment of foreclosure the court will
91enter, if the defendant waives the right to be heard at the
92hearing on the order to show cause.
93     9.  Require the mortgagee to serve a copy of the order to
94show cause on the mortgagor in the following manner:
95     a.  If the mortgagor has been served with the complaint and
96original process, service of the order may be made in the manner
97provided in the Florida Rules of Civil Procedure.
98     b.  If the mortgagor has not been served with the complaint
99and original process, the order to show cause, together with the
100summons and a copy of the complaint, shall be served on the
101mortgagor in the same manner as provided by law for original
102process.
103     10.  Require the mortgagee to file and serve with the order
104to show cause a notice in the same form as required by s.
10545.0321.
106
107Any final judgment of foreclosure entered under this subsection
108is for in rem relief only. Nothing in this subsection shall
109preclude the entry of a deficiency judgment where otherwise
110allowed by law.
111     Section 4.  This act shall take effect July 1, 2007.


CODING: Words stricken are deletions; words underlined are additions.