Senate Bill 1506c1
CODING: Words stricken are deletions; words underlined are additions.
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.
19
20 Be It Enacted by the Legislature of the State of Florida:
21
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.--
1
CODING: Words stricken are deletions; words underlined are additions.
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.
25
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
2
CODING: Words stricken are deletions; words underlined are additions.
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
3
CODING: Words stricken are deletions; words underlined are additions.
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.
13
14 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
15 SB 1506
16
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.
22
23
24
25
26
27
28
29
30
31
4