Senate Bill 1506c1

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    Florida Senate - 1999                           CS for SB 1506

    By the Committee on Judiciary and Senator Campbell





    308-1828-99

  1                      A bill to be entitled

  2         An act relating to judicial proceedings;

  3         amending ss. 48.194, 49.021, F.S.; providing

  4         that personal service on a party outside the

  5         United States may be made by publication in

  6         certain foreclosure proceedings; amending s.

  7         702.01, F.S.; providing that in mortgage

  8         foreclosure proceedings a guardian ad litem

  9         need not be appointed unless it appears in the

10         public records or the plaintiff otherwise knows

11         that a defendant is deceased or incompetent or

12         that the interest of minors or heirs are

13         involved; amending s. 687.06, F.S.; providing

14         that it is unnecessary for the court to adjudge

15         attorney's fees to be reasonable in proceedings

16         to enforce a note or mortgage when the note or

17         mortgage provides for the award of reasonable

18         attorney's fees; providing an effective date.

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20  Be It Enacted by the Legislature of the State of Florida:

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22         Section 1.  Subsection (5) is added to section 48.194,

23  Florida Statutes, to read:

24         48.194  Personal service outside state.--

25         (5)  It is unnecessary to obtain personal service under

26  subsection (1) on a party outside the United States when

27  in-rem or quasi in-rem relief is sought in a foreclosure

28  proceeding as defined in s. 702.09.

29         Section 2.  Section 49.021, Florida Statutes, is

30  amended to read:

31         49.021  Service of process by publication, upon whom.--

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    Florida Senate - 1999                           CS for SB 1506
    308-1828-99




  1         (1)  Where personal service of process or, if

  2  appropriate, service of process under s. 48.194 cannot be had,

  3  service of process by publication may be had upon any party,

  4  natural or corporate, known or unknown, including:

  5         (a)(1)  Any known or unknown natural person, and, when

  6  described as such, the unknown spouse, heirs, devisees,

  7  grantees, creditors, or other parties claiming by, through,

  8  under, or against any known or unknown person who is known to

  9  be dead or is not known to be either dead or alive;

10         (b)(2)  Any corporation or other legal entity, whether

11  its domicile be foreign, domestic, or unknown, and whether

12  dissolved or existing, including corporations or other legal

13  entities not known to be dissolved or existing, and, when

14  described as such, the unknown assigns, successors in

15  interest, trustees, or any other party claiming by, through,

16  under, or against any named corporation or legal entity;

17         (c)(3)  Any group, firm, entity, or persons who operate

18  or do business, or have operated or done business, in this

19  state, under a name or title which includes the word

20  "corporation," "company," "incorporated," "inc.," or any

21  combination thereof, or under a name or title which indicates,

22  tends to indicate or leads one to think that the same may be a

23  corporation or other legal entity; and

24         (d)(4)  All claimants under any of such parties.

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26  Unknown parties may be proceeded against exclusively or

27  together with other parties.

28         (2)  It is unnecessary to obtain personal service under

29  s. 48.194(1) on a party outside the United States when in-rem

30  or quasi in-rem relief is sought in a foreclosure proceeding

31  as defined in s. 702.09. A party may choose to serve process

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    Florida Senate - 1999                           CS for SB 1506
    308-1828-99




  1  under this section without being required to show that

  2  personal service under s. 48.194(1) could not be had. However,

  3  the service by publication must be mailed to the last known

  4  address.

  5         Section 3.  Section 702.01, Florida Statutes, is

  6  amended to read:

  7         702.01  Equity.--All mortgages shall be foreclosed in

  8  equity.  In a mortgage foreclosure action, the court shall

  9  sever for separate trial all counterclaims against the

10  foreclosing mortgagee.  The foreclosure claim shall, if tried,

11  be tried to the court without a jury. A guardian ad litem need

12  not be appointed unless it affirmatively appears in the public

13  records in the county where the foreclosure process is

14  commenced or the plaintiff otherwise knows that a defendant is

15  deceased or incompetent or that the interests of minors or

16  heirs are involved.

17         Section 4.  Section 687.06, Florida Statutes, is

18  amended to read:

19         687.06  Attorney's fee in enforcing nonusurious

20  contracts; proviso; insurance premiums; attorney's fee

21  provided in note.--This chapter shall not be so construed as

22  to prevent provision for the payment of such attorney's fees

23  as the court may determine in cases brought before the court

24  to be reasonable and just for legal services rendered in

25  enforcing nonusurious contracts, either at law or in equity.

26  This chapter shall not be construed so as to prohibit

27  mortgagees from contracting for or collecting premiums for

28  insurance actually issued on the property mortgaged, with the

29  usual loss payable or mortgage clause attached thereto;

30  provided further, that it shall not be necessary for the court

31  to adjudge an attorney's fee, provided in any note or other

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    Florida Senate - 1999                           CS for SB 1506
    308-1828-99




  1  instrument of writing, to be reasonable and just, when such

  2  fee does not exceed 10 percent of the principal sum named in

  3  said note, or other instrument in writing. When a note or

  4  mortgage provides for the award of reasonable attorney's fees,

  5  whether or not there is any reference to a specific percentage

  6  in the note or mortgage, it is unnecessary for the court to

  7  adjudge attorney's fees to be reasonable and just when such

  8  fees do not exceed 3 percent of the original principal sum

  9  stated in the note or other instrument, and such amount shall

10  be considered to be liquidated damages in any proceedings for

11  the enforcement of the note or mortgage.

12         Section 5.  This act shall take effect July 1, 1999.

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14          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
15                             SB 1506

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17  The CS requires that service of process by mail be attempted
    prior to service by publication in an in-rem or quasi in-rem
18  foreclosure action.

19  The CS allows the court to forego appointing a guardian ad
    litem in a case where the plaintiff does not have knowledge
20  nor do the county records reflect that the case involves a
    minor or heirs, a person who has been determined to be
21  incompetent or someone who is deceased.

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