Florida Senate - 2012                             CS for SB 1890
       
       
       
       By the Committee on Judiciary; and Senator Latvala
       
       
       
       
       590-03622-12                                          20121890c1
    1                        A bill to be entitled                      
    2         An act relating to mortgage foreclosure proceedings;
    3         amending s. 95.11, F.S.; specifying the limitation
    4         period for initiating an action to collect a
    5         deficiency following the foreclosure of certain
    6         dwellings; providing for application to existing
    7         causes of action; amending s. 701.04, F.S.; specifying
    8         requirements for a holder of a mortgage to provide an
    9         estoppel statement to certain persons requesting the
   10         payoff amount for the mortgage; specifying the
   11         required contents of the estoppel statement; requiring
   12         a person who provides a mortgage satisfaction to
   13         provide supplemental information if the person was not
   14         the owner of the mortgage; requiring certain persons
   15         who are not a mortgagor to provide information showing
   16         the requestor’s ownership interest in the property to
   17         the mortgageholder when making a request for the
   18         payoff amount of the mortgage; specifying documents
   19         that the person who provides the mortgage satisfaction
   20         must provide to the payor of a mortgage note;
   21         specifying a fee for failing to timely provide the
   22         required documents to the payor; authorizing the use
   23         of a summary procedure to compel compliance with
   24         requirements to provide an estoppel statement or the
   25         documents that must be provided by the person who
   26         provides a mortgage satisfaction; creating s. 701.045,
   27         F.S.; requiring a party who is owed and who is fully
   28         paid money due on a lien or judgment to execute in
   29         writing an instrument acknowledging satisfaction of
   30         the lien or judgment, to have the instrument recorded
   31         in the official records of the appropriate county
   32         requiring the party, and to send within a specified
   33         time the recorded instrument to the person who made
   34         full payment; providing for attorney fees and costs;
   35         requiring the party receiving full payment for a
   36         judgment for which a writ of execution has been
   37         issued, docketed, and indexed with a sheriff to
   38         request, in writing and addressed to the sheriff, the
   39         return of the satisfied writ of execution; requiring
   40         compliance with certain procedures; creating s.
   41         702.015, F.S.; specifying required contents of a
   42         complaint seeking to foreclose on certain types of
   43         residential properties with respect to the authority
   44         of the plaintiff to foreclose on the note and the
   45         location of the note; creating s. 702.036, F.S.;
   46         requiring a court to treat a challenge to a final
   47         judgment of foreclosure as a claim for monetary
   48         damages under certain circumstances; amending s.
   49         702.06, F.S.; providing that a person who forecloses
   50         on a mortgage may not initiate an action to recover a
   51         deficiency if the court in the foreclosure action has
   52         granted or denied a claim for a deficiency judgment;
   53         limiting the amount of the deficiency judgment;
   54         requiring a separate action to recover a deficiency be
   55         initiated within a certain time period; amending s.
   56         702.10, F.S.; expanding the class of persons
   57         authorized to move for expedited foreclosure; defining
   58         the term “lienholder”; providing requirements and
   59         procedures with respect to an order directed to
   60         defendants to show cause why a final judgment of
   61         foreclosure should not be entered; providing that
   62         certain failures by a defendant to make certain
   63         filings or to make certain appearances may have
   64         specified legal consequences; requiring the court to
   65         enter a final judgment of foreclosure and order a
   66         foreclosure sale under certain circumstances; revising
   67         a restriction on a mortgagee to request a court to
   68         order a mortgagor defendant to make payments or to
   69         vacate the premises during an action to foreclose on
   70         residential real estate to provide that the
   71         restriction applies to all but owner-occupied
   72         residential property; providing a presumption
   73         regarding owner-occupied residential property;
   74         requesting the Supreme Court to adopt rules and forms
   75         for use in expedited foreclosure proceedings; creating
   76         s. 702.11, F.S.; specifying security that may be
   77         determined by the court as adequate protection against
   78         a loss by another person seeking to enforce the
   79         mortgage; authorizing the holder of a note to initiate
   80         an action against a person who wrongfully claimed to
   81         be entitled to enforce the note for damages and
   82         attorney fees and costs; authorizing the holder of the
   83         note to pursue the recovery against any adequate
   84         protections given by the person who wrongfully claimed
   85         to be entitled to enforce the note; creating s.
   86         702.13, F.S.; establishing expedited foreclosure
   87         proceedings for abandoned residential real property
   88         and procedures and requirements with respect thereto;
   89         providing for application of the act; providing an
   90         effective date.
   91  
   92  Be It Enacted by the Legislature of the State of Florida:
   93  
   94         Section 1. Paragraph (b) of subsection (2) and subsection
   95  (5) of section 95.11, Florida Statutes, are amended to read:
   96         95.11 Limitations other than for the recovery of real
   97  property.—Actions other than for recovery of real property shall
   98  be commenced as follows:
   99         (2) WITHIN FIVE YEARS.—
  100         (b) A legal or equitable action on a contract, obligation,
  101  or liability founded on a written instrument, except for an
  102  action to enforce a claim against a payment bond, which shall be
  103  governed by the applicable provisions of ss. 255.05(10) and
  104  713.23(1)(e), and except for an action for a deficiency
  105  judgment, which shall be governed by paragraph (5)(h) and s.
  106  702.06.
  107         (5) WITHIN ONE YEAR.—
  108         (a) An action for specific performance of a contract.
  109         (b) An action to enforce an equitable lien arising from the
  110  furnishing of labor, services, or material for the improvement
  111  of real property.
  112         (c) An action to enforce rights under the Uniform
  113  Commercial Code—Letters of Credit, chapter 675.
  114         (d) An action against any guaranty association and its
  115  insured, with the period running from the date of the deadline
  116  for filing claims in the order of liquidation.
  117         (e) An action to enforce any claim against a payment bond
  118  on which the principal is a contractor, subcontractor, or sub
  119  subcontractor as defined in s. 713.01, for private work as well
  120  as public work, from the last furnishing of labor, services, or
  121  materials or from the last furnishing of labor, services, or
  122  materials by the contractor if the contractor is the principal
  123  on a bond on the same construction project, whichever is later.
  124         (f) Except for actions described in subsection (8), a
  125  petition for extraordinary writ, other than a petition
  126  challenging a criminal conviction, filed by or on behalf of a
  127  prisoner as defined in s. 57.085.
  128         (g) Except for actions described in subsection (8), an
  129  action brought by or on behalf of a prisoner, as defined in s.
  130  57.085, relating to the conditions of the prisoner’s
  131  confinement.
  132         (h) An action under s. 702.06, to collect a deficiency
  133  following the foreclosure of an owner-occupied, one-family to
  134  four-family dwelling unit.
  135         Section 2. The amendments to s. 95.11, Florida Statutes,
  136  made by this act shall apply to any action commenced on or after
  137  July 1, 2012, regardless of when the cause of action accrues,
  138  except that any action that would not have been barred under s.
  139  95.11(2)(b), Florida Statutes, before the changes made by this
  140  act may be commenced no later than 5 years after the action
  141  accrues and in no event later than July 1, 2014, and if the
  142  action is not commenced by that date, it is barred by the
  143  changes made by this act.
  144         Section 3. Section 701.04, Florida Statutes, is amended to
  145  read:
  146         701.04 Cancellation of mortgages, liens, and judgments.—
  147         (1)(a) If a mortgagor, a holder of an interest in property
  148  encumbered by a mortgage, or a designee of either makes a
  149  written request for the payoff amount of the mortgage as of a
  150  certain date, the holder of the mortgage shall provide a written
  151  estoppel statement executed by an officer or authorized agent of
  152  the holder of the mortgage to the person making the request
  153  within 15 days after the date the request was received. The
  154  estoppel statement shall be delivered to the place, facsimile
  155  number, or e-mail address designated in the written request. The
  156  estoppel statement shall set Within 14 days after receipt of the
  157  written request of a mortgagor, the holder of a mortgage shall
  158  deliver to the mortgagor at a place designated in the written
  159  request an estoppel letter setting forth:
  160         1. The unpaid balance of the loan secured by the mortgage,
  161  including principal, all accrued interest, and any other charges
  162  properly due under or secured by the mortgage as of the date
  163  specified in the request. and
  164         2. Interest on a per-day basis for the unpaid balance for a
  165  period of at least 20 days after the date specified in the
  166  request.
  167         3. A certification that the party providing the estoppel
  168  statement is the holder of the original promissory note secured
  169  thereby, or is the person or agent of the person entitled to
  170  enforce the note pursuant to s. 673.3011.
  171         4.A commitment to comply with paragraph (d) upon timely
  172  receipt of the amounts set forth in the estoppel statement.
  173         (b)The mortgagee may not charge a fee for the preparation
  174  or delivery of the first two estoppel statements requested for
  175  any one mortgage in any calendar month. This paragraph is not
  176  intended to limit requirements of federal law.
  177         (c) Subsequent owners of the property encumbered by the
  178  mortgage, and creditors and lienholders taking an interest in
  179  the property for a valuable consideration, and those claiming
  180  by, through, and under them, may rely on the estoppel statement
  181  and are entitled to the benefits of the statement.
  182         (d) Whenever the amount of money due on a any mortgage,
  183  lien, or judgment is shall be fully paid to the person or party
  184  entitled to the payment thereof, or all obligations secured by
  185  the mortgage or lien are otherwise satisfied, the mortgagee,
  186  creditor, or assignee, or the attorney of record in the case of
  187  a judgment, to whom such payment has shall have been made or
  188  satisfaction has been given, shall execute in writing an
  189  instrument acknowledging satisfaction of the said mortgage,
  190  lien, or judgment and have the same acknowledged, or proven, and
  191  recorded duly entered of record in the official records book
  192  provided by law for such purposes in the proper county. If the
  193  person or party executing the satisfaction is not shown as the
  194  owner of the mortgage in the official records, the instrument
  195  shall be supplemented by an affidavit that the person executing
  196  the satisfaction is in physical possession of the original
  197  promissory note secured by the mortgage or was entitled to
  198  enforce the note pursuant to s. 673.3011. If the person was
  199  entitled only to enforce the note, but was not in possession of
  200  the note, the person shall provide in the affidavit the specific
  201  factual basis for such authority.
  202         (e)If the written request for the payoff amount for the
  203  mortgage as of a certain date is not from the mortgagor or the
  204  designee of the mortgagor, the request must include a copy of
  205  the instrument or instruments showing the requestor’s ownership
  206  interest in the property. The mortgageholder, in response to the
  207  request, is not required to itemize the unpaid balance of the
  208  loan secured by the mortgage.
  209         (2)(a) Within 60 days after of the date of receipt of the
  210  full payment of the mortgage in accord with the estoppel
  211  statement, lien, or judgment, the person required to acknowledge
  212  satisfaction of the mortgage, lien, or judgment shall send or
  213  cause to be sent the recorded satisfaction to the maker of the
  214  promissory note, or such other person as may be designated in
  215  writing by the payor at or after the final payment, a certified
  216  copy of the recorded satisfaction. The person shall also send to
  217  the payor of a mortgage note:
  218         1. The original promissory note, marked “paid in full”; or
  219         2. An affidavit stating that the note was lost, destroyed,
  220  or stolen, together with exhibits in compliance with s. 702.015
  221  and evidence of adequate protections as provided in s. 702.11.
  222         (b) If the documents required by this subsection are not
  223  delivered within 60 days, the party who received payment on the
  224  note or mortgage shall pay to the maker of the promissory note
  225  or its designee a fee in the amount of $100 per day for each day
  226  beyond 60 days that the documents have not been delivered. The
  227  aggregate fees under this paragraph may not exceed $5,000.
  228         (3) A summary procedure pursuant to s. 51.011 may be
  229  brought to compel compliance with the requirements of this
  230  section, and the prevailing party shall recover reasonable
  231  attorney fees and costs. The court may limit recovery of
  232  attorney fees and costs if an unreasonable number of requests
  233  for estoppel statements have been made person who has made the
  234  full payment. In the case of a civil action arising out of the
  235  provisions of this section, the prevailing party shall be
  236  entitled to attorney’s fees and costs.
  237         (4)(2) Whenever a writ of execution has been issued,
  238  docketed, and indexed with a sheriff and the judgment upon which
  239  it was issued has been fully paid, it shall be the
  240  responsibility of the party receiving payment to request, in
  241  writing, addressed to the sheriff, return of the writ of
  242  execution as fully satisfied.
  243         Section 4. Section 701.045, Florida Statutes, is created to
  244  read:
  245         701.045 Cancellation of liens and judgments.—
  246         (1) If the amount of money due on any lien, other than a
  247  mortgage, or any judgment is fully paid to the party entitled to
  248  such payment or to the creditor or assignee, the party, the
  249  creditor, or the assignee to whom such payment has been made
  250  shall execute in writing an instrument acknowledging
  251  satisfaction of the lien or judgment, have the instrument
  252  acknowledged or proven, and have the instrument duly entered of
  253  record in the official records in the appropriate county. Within
  254  60 days after the date of receipt of the full payment of the
  255  lien or judgment, the party required to acknowledge satisfaction
  256  of the lien or judgment shall send or cause to be sent the
  257  recorded satisfaction instrument to the party who has made the
  258  full payment. In the case of a civil action arising out of this
  259  section, the prevailing party is entitled to attorney fees and
  260  costs.
  261         (2) If a writ of execution has been issued, docketed, and
  262  indexed with a sheriff and the judgment upon which it was issued
  263  has been fully paid, the party receiving payment must request,
  264  in writing and addressed to the sheriff, return of the writ of
  265  execution as fully satisfied.
  266         (3) The party receiving full payment of any judgment shall
  267  also comply with s. 55.206, as appropriate.
  268         Section 5. Section 702.015, Florida Statutes, is created to
  269  read:
  270         702.015Elements of complaint; lost, destroyed, or stolen
  271  note affidavit.—
  272         (1) A complaint that seeks to foreclose a mortgage or other
  273  lien on residential real property, including individual units of
  274  condominiums and cooperatives, designed principally for
  275  occupation by from one to four families, but not including an
  276  interest in a timeshare property, which secures a promissory
  277  note must:
  278         (a) Contain affirmative allegations expressly made by the
  279  plaintiff at the time the proceeding is commenced that the
  280  plaintiff is the holder of the original note secured by the
  281  mortgage; or
  282         (b) Allege with specificity the factual basis by which the
  283  plaintiff is a person entitled to enforce the note under s.
  284  673.3011.
  285         (2) If a party has been delegated the authority to
  286  institute a mortgage foreclosure action on behalf of the holder
  287  of the note, the complaint shall describe the authority of the
  288  plaintiff and identify, with specificity, the document that
  289  grants the plaintiff the authority to act on behalf of the
  290  holder of the note. This subsection is intended to require
  291  initial disclosure of status and pertinent facts and not to
  292  modify law regarding standing or real parties in interest.
  293         (3) If the plaintiff is in physical possession of the
  294  original promissory note, the plaintiff must file with the
  295  court, contemporaneously with and as a condition precedent to
  296  the filing of the complaint for foreclosure, certification,
  297  under penalty of perjury, that the plaintiff is in physical
  298  possession of the original promissory note. The certification
  299  must set forth the physical location of the note, the name and
  300  title of the individual giving the certification, the name of
  301  the person who personally verified such physical possession, and
  302  the time and date on which the possession was verified. Correct
  303  copies of the note and all allonges to the note must be attached
  304  to the certification. The original note and the allonges must be
  305  filed with the court before the entry of any judgment of
  306  foreclosure or judgment on the note.
  307         (4) If the plaintiff seeks to enforce a lost, destroyed, or
  308  stolen instrument, an affidavit executed under penalty of
  309  perjury must be attached to the complaint. The affidavit must:
  310         (a) Detail a clear chain of all assignments for the
  311  promissory note that is the subject of the action.
  312         (b) Set forth facts showing that the plaintiff is entitled
  313  to enforce a lost, destroyed, or stolen instrument pursuant to
  314  s. 673.3091.
  315         (c) Include as exhibits to the affidavit such copies of the
  316  note and the allonges to the note, assignments of mortgage,
  317  audit reports showing physical receipt of the original note, or
  318  other evidence of the acquisition, ownership, and possession of
  319  the note as may be available to the plaintiff.
  320         Section 6. Section 702.036, Florida Statutes, is created to
  321  read:
  322         702.036 Finality of mortgage foreclosure judgment.—
  323         (1)(a) In an action or proceeding in which a party seeks to
  324  set aside, invalidate, or challenge the validity of a final
  325  judgment of foreclosure of a mortgage or to establish or
  326  reestablish a lien or encumbrance on the property in abrogation
  327  of the final judgment of foreclosure of a mortgage, the court
  328  shall treat such request solely as a claim for monetary damages
  329  and may not grant relief that adversely affects the quality or
  330  character of the title to the property if:
  331         1. A final judgment of foreclosure of a mortgage has been
  332  entered as to a property;
  333         2. All applicable appeals periods have run as to the final
  334  judgment of foreclosure of a mortgage and an appeal has not been
  335  filed or, if an appeal has been filed, it has been finally
  336  resolved;
  337         3. The property has been acquired for value by a person not
  338  affiliated with the foreclosing lender or the foreclosed owner,
  339  at a time in which no lis pendens regarding the suit to set
  340  aside, invalidate, or challenge the foreclosure appears in the
  341  official records of the county where the property is located;
  342  and
  343         4. The party seeking relief from the final judgment of
  344  foreclosure of a mortgage has been properly served in the
  345  foreclosure lawsuit as provided in chapter 48 or chapter 49.
  346         (b) This subsection does not limit the right to pursue any
  347  other relief to which a person may be entitled, including, but
  348  not limited to, compensatory damages, punitive damages,
  349  statutory damages, consequential damages, injunctive relief, or
  350  fees and costs, and which does not adversely affect the
  351  ownership of the title to the property as vested in the
  352  unaffiliated purchaser for value.
  353         (2) For purposes of this section, the following, without
  354  limitation, shall be considered persons affiliated with the
  355  foreclosing lender:
  356         (a) The foreclosing lender or any loan servicer for the
  357  loan being foreclosed;
  358         (b) Any past or present owner or holder of the loan being
  359  foreclosed;
  360         (c) Any maintenance company, holding company, foreclosure
  361  services company, or law firm under contract to any entity
  362  listed in paragraph (a), paragraph (b), or this paragraph, with
  363  regard to the loan being foreclosed; or
  364         (d) Any parent entity, subsidiary, or other person that
  365  directly, or indirectly through one or more intermediaries,
  366  controls or is controlled by, or is under common control with,
  367  any entity listed in paragraph (a), paragraph (b), or paragraph
  368  (c).
  369         (3) After foreclosure of a mortgage based upon the
  370  enforcement of a lost, destroyed, or stolen note, a person who
  371  is not a party to the underlying foreclosure action but who
  372  claims to be the actual holder of the promissory note secured by
  373  the foreclosed mortgage does not have a claim against the
  374  foreclosed property after it has been conveyed for valuable
  375  consideration to a person not affiliated with the foreclosing
  376  lender or the foreclosed owner. This section does not preclude
  377  the actual holder of the note from pursuing recovery from any
  378  adequate protection given under s. 673.3091 by the person who
  379  enforced the note or from the party who wrongfully claimed to be
  380  the owner or holder of the promissory note or the maker of the
  381  note or from any other person against whom the actual holder of
  382  the note may have a claim relating to the note.
  383         Section 7. Section 702.06, Florida Statutes, is amended to
  384  read:
  385         702.06 Deficiency decree; common-law suit to recover
  386  deficiency.—
  387         (1) In an action all suits for the foreclosure of a
  388  mortgage, mortgages heretofore or hereafter executed the entry
  389  of a deficiency decree for any portion of a deficiency, should
  390  one exist, must shall be commenced within 1 year after the sale
  391  date of the mortgaged property pursuant to a court foreclosure
  392  sale or short sale. If not commenced within 1 year after sale,
  393  any attempt to collect a deficiency judgment shall be barred.
  394  The amount of the deficiency judgment may not exceed the
  395  difference between the judgment amount or, in the case of a
  396  short sale, the outstanding debt, and the fair market value of
  397  the property on the date of sale. the sound judicial discretion
  398  of the court, but The complainant shall also have the right to
  399  sue at common law to recover such deficiency, unless the court
  400  in the foreclosure action has granted or denied a claim for a
  401  deficiency judgment provided no suit at law to recover such
  402  deficiency shall be maintained against the original mortgagor in
  403  cases where the mortgage is for the purchase price of the
  404  property involved and where the original mortgagee becomes the
  405  purchaser thereof at foreclosure sale and also is granted a
  406  deficiency decree against the original mortgagor.
  407         (2)(a) With respect to an owner-occupied, one-family to
  408  four-family dwelling unit, the party to whom a deficiency is
  409  owing may move for the entry of a deficiency judgment in the
  410  foreclosure action or file a separate action for collection of
  411  the deficiency. The separate action must be filed within 1 year
  412  after the property has vested in the foreclosing lender or other
  413  purchaser at the foreclosure sale.
  414         (b) If a deficiency is not pursued within the time period
  415  specified in this subsection, the vesting of the property or
  416  proceeds of the sale, regardless of the amount, shall be deemed
  417  to be in full satisfaction of the judgment debt and a right to
  418  recover any deficiency in any subsequent action or proceeding is
  419  extinguished.
  420         (c) This subsection does not restrict the authority of the
  421  court to determine the entitlement to any assets held by any
  422  receiver or any assignee of the rents and profits of the
  423  property.
  424         Section 8. Section 702.10, Florida Statutes, is amended to
  425  read:
  426         702.10 Order to show cause; entry of final judgment of
  427  foreclosure; payment during foreclosure.—
  428         (1) A lienholder After a complaint in a foreclosure
  429  proceeding has been filed, the mortgagee may request an order to
  430  show cause for the entry of final judgment in a foreclosure
  431  action. For purposes of this section, the term “lienholder”
  432  includes the plaintiff and a defendant to the action who holds a
  433  lien encumbering the property or a defendant who, by virtue of
  434  its status as a condominium association, cooperative
  435  association, or homeowners’ association, may file a lien against
  436  the real property subject to foreclosure. Upon filing, and the
  437  court shall immediately review the request and the court file in
  438  chambers and without a hearing complaint. If, upon examination
  439  of the court file complaint, the court finds that the complaint
  440  is verified, complies with s. 702.015, and alleges a cause of
  441  action to foreclose on real property, the court shall promptly
  442  issue an order directed to the other parties named in the action
  443  defendant to show cause why a final judgment of foreclosure
  444  should not be entered.
  445         (a) The order shall:
  446         1. Set the date and time for a hearing on the order to show
  447  cause. However, The date for the hearing may not be set sooner
  448  than 20 days after the service of the order. When service is
  449  obtained by publication, the date for the hearing may not be set
  450  sooner than 30 days after the first publication. The hearing
  451  must be held within 90 60 days after the date of service.
  452  Failure to hold the hearing within such time does not affect the
  453  validity of the order to show cause or the jurisdiction of the
  454  court to issue subsequent orders.
  455         2. Direct the time within which service of the order to
  456  show cause and the complaint must be made upon the defendant.
  457         3. State that the filing of defenses by a motion,
  458  responsive pleading, affidavits, or other papers or by a
  459  verified or sworn answer at or before the hearing to show cause
  460  may constitute constitutes cause for the court not to enter the
  461  attached final judgment.
  462         4. State that a the defendant has the right to file
  463  affidavits or other papers before at the time of the hearing to
  464  show cause and may appear personally or by way of an attorney at
  465  the hearing.
  466         5. State that, if a the defendant files defenses by a
  467  motion, a verified or sworn answer, affidavits, or other papers
  468  or appears personally or by way of an attorney at the time of
  469  the hearing, the hearing time will may be used to hear and
  470  consider the defendant’s motion, answer, affidavits, other
  471  papers, and other evidence and argument as may be presented by
  472  the defendant or the defendant’s attorney. The order shall also
  473  state that the court may enter an order of final judgment of
  474  foreclosure, which must be based on clear and convincing
  475  evidence and the arguments presented. If such an order is
  476  entered, the court shall enter a final judgment of foreclosure
  477  ordering the clerk of the court to conduct a foreclosure sale.
  478         6. State that, if a the defendant fails to appear at the
  479  hearing to show cause or fails to file defenses by a motion or
  480  by a verified or sworn answer or files an answer not contesting
  481  the foreclosure, such the defendant may be considered to have
  482  waived the right to a hearing, and in such case, the court may
  483  enter a default against such defendant and, if appropriate, a
  484  final judgment of foreclosure ordering the clerk of the court to
  485  conduct a foreclosure sale.
  486         7. State that if the mortgage provides for reasonable
  487  attorney attorney’s fees and the requested attorney attorney’s
  488  fees do not exceed 3 percent of the principal amount owed at the
  489  time of filing the complaint, it is unnecessary for the court to
  490  hold a hearing or adjudge the requested attorney attorney’s fees
  491  to be reasonable.
  492         8. Attach the form of the proposed final judgment of
  493  foreclosure which the movant requests the court to will enter,
  494  if the defendant waives the right to be heard at the hearing on
  495  the order to show cause. The form may contain blanks for the
  496  court to enter the amounts due.
  497         9. Require the party seeking final judgment mortgagee to
  498  serve a copy of the order to show cause on the other parties the
  499  mortgagor in the following manner:
  500         a. If a party the mortgagor has been served with the
  501  complaint and original process, or the other party is the
  502  plaintiff in the action, service of the order to show cause on
  503  that party order may be made in the manner provided in the
  504  Florida Rules of Civil Procedure.
  505         b. If a defendant the mortgagor has not been served with
  506  the complaint and original process, the order to show cause,
  507  together with the summons and a copy of the complaint, shall be
  508  served on the party mortgagor in the same manner as provided by
  509  law for original process.
  510  
  511  Any final judgment of foreclosure entered under this subsection
  512  is for in rem relief only. Nothing in This subsection does not
  513  shall preclude the entry of a deficiency judgment where
  514  otherwise allowed by law. It is the intent of the Legislature
  515  that this alternative procedure may run simultaneously with
  516  other court procedures.
  517         (b) The right to be heard at the hearing to show cause is
  518  waived if a the defendant, after being served as provided by law
  519  with an order to show cause, engages in conduct that clearly
  520  shows that the defendant has relinquished the right to be heard
  521  on that order. The defendant’s failure to file defenses by a
  522  motion or by a sworn or verified answer, affidavits, or other
  523  papers or to appear personally or by way of an attorney at the
  524  hearing duly scheduled on the order to show cause presumptively
  525  constitutes conduct that clearly shows that the defendant has
  526  relinquished the right to be heard. If a defendant files
  527  defenses by a motion, or by a verified or sworn answer,
  528  affidavits, or other papers at or before the hearing, such
  529  action may constitute constitutes cause and may preclude
  530  precludes the entry of a final judgment at the hearing to show
  531  cause.
  532         (c) In a mortgage foreclosure proceeding, when a final
  533  default judgment of foreclosure has been entered against the
  534  mortgagor and the note or mortgage provides for the award of
  535  reasonable attorney attorney’s fees, it is unnecessary for the
  536  court to hold a hearing or adjudge the requested attorney
  537  attorney’s fees to be reasonable if the fees do not exceed 3
  538  percent of the principal amount owed on the note or mortgage at
  539  the time of filing, even if the note or mortgage does not
  540  specify the percentage of the original amount that would be paid
  541  as liquidated damages.
  542         (d) If the court finds that all defendants have the
  543  defendant has waived the right to be heard as provided in
  544  paragraph (b), the court shall promptly enter a final judgment
  545  of foreclosure without the need for further hearing if the
  546  plaintiff has shown entitlement to a final judgment. If the
  547  court finds that a the defendant has not waived the right to be
  548  heard on the order to show cause, the court shall then determine
  549  whether there is cause not to enter a final judgment of
  550  foreclosure. If the court determines, based upon clear and
  551  convincing evidence and the arguments presented, to support
  552  entry of a final judgment of foreclosure, the court shall enter
  553  a final judgment of foreclosure ordering the clerk of the court
  554  to conduct a foreclosure sale finds that the defendant has not
  555  shown cause, the court shall promptly enter a judgment of
  556  foreclosure. If the time allotted for the hearing is
  557  insufficient, the court may announce at the hearing a date and
  558  time for the continued hearing. Only the parties who appear,
  559  individually or through an attorney, at the initial hearing must
  560  be notifed of the date and time of the continued hearing.
  561         (2) This subsection does not apply to foreclosure of an
  562  owner-occupied residence. As part of any other In an action for
  563  foreclosure, and in addition to any other relief that the court
  564  may award other than residential real estate, the plaintiff the
  565  mortgagee may request that the court enter an order directing
  566  the mortgagor defendant to show cause why an order to make
  567  payments during the pendency of the foreclosure proceedings or
  568  an order to vacate the premises should not be entered.
  569         (a) The order shall:
  570         1. Set the date and time for hearing on the order to show
  571  cause. However, the date for the hearing may shall not be set
  572  sooner than 20 days after the service of the order. If Where
  573  service is obtained by publication, the date for the hearing may
  574  shall not be set sooner than 30 days after the first
  575  publication.
  576         2. Direct the time within which service of the order to
  577  show cause and the complaint shall be made upon each the
  578  defendant.
  579         3. State that a the defendant has the right to file
  580  affidavits or other papers at the time of the hearing and may
  581  appear personally or by way of an attorney at the hearing.
  582         4. State that, if a the defendant fails to appear at the
  583  hearing to show cause and fails to file defenses by a motion or
  584  by a verified or sworn answer, the defendant is may be deemed to
  585  have waived the right to a hearing and in such case the court
  586  may enter an order to make payment or vacate the premises.
  587         5. Require the movant mortgagee to serve a copy of the
  588  order to show cause on the defendant mortgagor in the following
  589  manner:
  590         a. If a defendant the mortgagor has been served with the
  591  complaint and original process, service of the order may be made
  592  in the manner provided in the Florida Rules of Civil Procedure.
  593         b. If a defendant the mortgagor has not been served with
  594  the complaint and original process, the order to show cause,
  595  together with the summons and a copy of the complaint, shall be
  596  served on the defendant mortgagor in the same manner as provided
  597  by law for original process.
  598         (b) The right of a defendant to be heard at the hearing to
  599  show cause is waived if the defendant, after being served as
  600  provided by law with an order to show cause, engages in conduct
  601  that clearly shows that the defendant has relinquished the right
  602  to be heard on that order. A The defendant’s failure to file
  603  defenses by a motion or by a sworn or verified answer or to
  604  appear at the hearing duly scheduled on the order to show cause
  605  presumptively constitutes conduct that clearly shows that the
  606  defendant has relinquished the right to be heard.
  607         (c) If the court finds that a the defendant has waived the
  608  right to be heard as provided in paragraph (b), the court may
  609  promptly enter an order requiring payment in the amount provided
  610  in paragraph (f) or an order to vacate.
  611         (d) If the court finds that the mortgagor has not waived
  612  the right to be heard on the order to show cause, the court
  613  shall, at the hearing on the order to show cause, consider the
  614  affidavits and other showings made by the parties appearing and
  615  make a determination of the probable validity of the underlying
  616  claim alleged against the mortgagor and the mortgagor’s
  617  defenses. If the court determines that the plaintiff mortgagee
  618  is likely to prevail in the foreclosure action, the court shall
  619  enter an order requiring the mortgagor to make the payment
  620  described in paragraph (e) to the plaintiff mortgagee and
  621  provide for a remedy as described in paragraph (f). However, the
  622  order shall be stayed pending final adjudication of the claims
  623  of the parties if the mortgagor files with the court a written
  624  undertaking executed by a surety approved by the court in an
  625  amount equal to the unpaid balance of the lien being foreclosed
  626  the mortgage on the property, including all principal, interest,
  627  unpaid taxes, and insurance premiums paid by the plaintiff the
  628  mortgagee.
  629         (e) If In the event the court enters an order requiring the
  630  mortgagor to make payments to the plaintiff mortgagee, payments
  631  shall be payable at such intervals and in such amounts provided
  632  for in the mortgage instrument before acceleration or maturity.
  633  The obligation to make payments pursuant to any order entered
  634  under this subsection shall commence from the date of the motion
  635  filed under this section hereunder. The order shall be served
  636  upon the mortgagor no later than 20 days before the date
  637  specified for the first payment. The order may permit, but may
  638  shall not require, the plaintiff mortgagee to take all
  639  appropriate steps to secure the premises during the pendency of
  640  the foreclosure action.
  641         (f) If In the event the court enters an order requiring
  642  payments, the order shall also provide that the plaintiff is
  643  mortgagee shall be entitled to possession of the premises upon
  644  the failure of the mortgagor to make the payment required in the
  645  order unless at the hearing on the order to show cause the court
  646  finds good cause to order some other method of enforcement of
  647  its order.
  648         (g) All amounts paid pursuant to this section shall be
  649  credited against the mortgage obligation in accordance with the
  650  terms of the loan documents;, provided, however, that any
  651  payments made under this section do shall not constitute a cure
  652  of any default or a waiver or any other defense to the mortgage
  653  foreclosure action.
  654         (h) Upon the filing of an affidavit with the clerk that the
  655  premises have not been vacated pursuant to the court order, the
  656  clerk shall issue to the sheriff a writ for possession which
  657  shall be governed by the provisions of s. 83.62.
  658         (i) For purposes of this subsection, there is a rebuttable
  659  presumption that a residential property for which a homestead
  660  exemption for taxation was granted according to the certified
  661  rolls of the latest assessment by the county property appraiser,
  662  before the filing of the foreclosure action, is an owner
  663  occupied residential property.
  664         (3) The Supreme Court is requested to amend the Florida
  665  Rules of Civil Procedure to provide for expedited foreclosure
  666  proceedings in conformity with this section. The Supreme Court
  667  is requested to develop and publish forms for use under this
  668  section.
  669         Section 9. Section 702.11, Florida Statutes, is created to
  670  read:
  671         702.11 Adequate protections for lost, destroyed, or stolen
  672  notes in mortgage foreclosure.—
  673         (1) In connection with a mortgage foreclosure, the court
  674  may find any of the following as reasonable means of providing
  675  adequate protection under s. 673.3019:
  676         (a) A written indemnification agreement by a person
  677  reasonably believed sufficiently solvent to honor such an
  678  obligation;
  679         (b) A surety bond;
  680         (c) A letter of credit issued by a financial institution;
  681         (d) A deposit of cash collateral with the clerk of the
  682  court; or
  683         (e) Such other security as the court may deem appropriate
  684  under the circumstances.
  685  
  686  Any security given shall be on terms and in amounts set by the
  687  court, for a time period through the running of the statute of
  688  limitations for enforcement of the underlying note, and
  689  conditioned to indemnify and hold harmless the maker of the note
  690  against any loss or damage, including principal, interest, and
  691  attorney fees and costs, which might occur by reason of a claim
  692  by another person to enforce the note.
  693         (2) Any person who wrongly claimed to be the holder of or,
  694  pursuant to s. 673.3011, wrongly claimed to be entitled to
  695  enforce a lost, stolen, or destroyed note and caused the
  696  mortgage secured by the note to be foreclosed is liable to the
  697  actual holder of the note for actual damages suffered, together
  698  with attorney fees and costs of the actual holder of the note in
  699  enforcing rights under this section. The extent of the liability
  700  is not limited to any adequate protections given under s.
  701  673.3091. In addition, the actual holder of the note may pursue
  702  recovery directly against any adequate protections given.
  703         (a) The actual holder of the note is not required to pursue
  704  recovery against the maker of the note or any guarantor of the
  705  note as a condition precedent to pursuing remedies under this
  706  section.
  707         (b) This section does not limit or restrict the ability of
  708  the actual holder of the note to pursue any other claims or
  709  remedies it may have against the maker, the person who wrongly
  710  claimed to be the holder, or any person who facilitated or
  711  participated in the claim to the note or enforcement of the
  712  note.
  713         Section 10. Section 702.13, Florida Statutes, is created to
  714  read:
  715         702.13 Expedited foreclosure of abandoned residential real
  716  property.—
  717         (1) As used in this section, the term “abandoned
  718  residential real property” means residential real property that
  719  is deemed abandoned upon a showing that:
  720         (a) A duly licensed process server unaffiliated with the
  721  owner or servicer of any mortgage on the residential real
  722  property or with the attorney or law firm representing such
  723  owner or servicer has made at least three attempts to locate an
  724  occupant of the residential real property. The attempts must
  725  have been made at least 72 hours apart, and at least one each of
  726  such attempts must have been made before 12 p.m., between 12
  727  p.m. and 6 p.m., and between 6 p.m. and 10 p.m. Each attempt
  728  must include physically knocking or ringing at the door of the
  729  residential real property and such other efforts as are normally
  730  sufficient to obtain a response from an occupant.
  731         (b) Two or more of the following conditions exist:
  732         1. Windows or entrances to the premises are boarded up or
  733  closed off or multiple window panes are broken and unrepaired.
  734         2. Doors to the premises are smashed through, broken off,
  735  unhinged, or continuously unlocked.
  736         3. Rubbish, trash, or debris has accumulated on the
  737  mortgaged premises.
  738         4. The premises are deteriorating and are below or in
  739  imminent danger of falling below minimum community standards for
  740  public safety and sanitation.
  741         5. If the premises are a part of a condominium or are
  742  governed by a mandatory homeowners association, the manager or
  743  other representative of the association has confirmed that
  744  assessments for the unit are at least 90 days delinquent.
  745         6.Interviews with at least two neighbors in different
  746  households indicate that the residence has been abandoned. The
  747  neighbors must be adjoining, across the street in view of the
  748  home, or across the hall or adjacent to the unit in a
  749  condominium or cooperative.
  750  
  751  The process server making attempts to locate an occupant of the
  752  residential real property may provide, by affidavit and
  753  photographic or other documentation, evidence of the condition
  754  of the residential real property.
  755         (2)(a) The party entitled to enforce the note and mortgage
  756  encumbering the residential real property appearing to be
  757  abandoned must file a petition before the court seeking to
  758  determine the status of the residential real property and to
  759  invoke an expedited foreclosure proceeding relating to the
  760  property. Upon the filing of an affidavit of diligent search and
  761  inquiry and the affidavit or documentary evidence set forth in
  762  subsection (1), the court shall, upon request of the petitioner,
  763  issue one or more subpoenas to the utility companies serving the
  764  residential real property commanding disclosure of the status of
  765  utility service to the subject property, including whether
  766  utilities are currently turned off and whether all outstanding
  767  utility payments have been made and, if so, by whom.
  768         (b) If, after review of the response of the utility
  769  companies to the subpoenas and all other matters of record, the
  770  court determines the property to have been abandoned, the party
  771  entitled to foreclose on interest encumbering the residential
  772  real property is entitled to use the expedited mortgage
  773  foreclosure procedures set forth in s. 702.10 upon service by
  774  publication. However, service must be made on any condominium,
  775  cooperative, or homeowners’ association having a lien interest
  776  in the property and all other junior lienholders as required by
  777  law.
  778         Section 11. This act is intended to be remedial in nature
  779  and applies to any action filed on or after the effective date
  780  of this act. The failure to strictly comply with the
  781  requirements of this act may be asserted only within the
  782  foreclosure proceeding itself and does not affect the validity
  783  of any final judgment of foreclosure which may be granted or
  784  give rise to any independent cause of action or claim for
  785  damages against the plaintiff or any other party.
  786         Section 12. This act shall take effect upon becoming a law.