Senate Bill 2594c1

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    Florida Senate - 2000                           CS for SB 2594

    By the Committee on Judiciary and Senator Campbell





    308-2083A-00

  1                      A bill to be entitled

  2         An act relating to mortgage-foreclosure

  3         proceedings; amending s. 702.10, F.S.;

  4         requiring hearing within 90 days from date of

  5         service; providing that a hearing and an

  6         adjudication that requested attorney's fees are

  7         reasonable are not necessary under certain

  8         conditions; providing an effective date.

  9

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

11

12         Section 1.  Subsection (1) of section 702.10, Florida

13  Statutes, is amended to read:

14         702.10  Order to show cause; entry of final judgment of

15  foreclosure; payment during foreclosure.--

16         (1)  After a complaint in a foreclosure proceeding has

17  been filed, the mortgagee may request an order to show cause

18  for the entry of final judgment and the court shall

19  immediately review the complaint.  If, upon examination of the

20  complaint, the court finds that the complaint is verified and

21  alleges a cause of action to foreclose on real property, the

22  court shall promptly issue an order directed to the defendant

23  to show cause why a final judgment of foreclosure should not

24  be entered.

25         (a)  The order shall:

26         1.  Set the date and time for hearing on the order to

27  show cause.  However, the date for the hearing shall not be

28  set sooner than 20 days after the service of the order.  Where

29  service is obtained by publication, the date for the hearing

30  shall not be set sooner than 30 days after the first

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






    Florida Senate - 2000                           CS for SB 2594
    308-2083A-00




  1  publication. The hearing shall be held no later than 90 days

  2  from the date of service.

  3         2.  Direct the time within which service of the order

  4  to show cause and the complaint shall be made upon the

  5  defendant.

  6         3.  State that the filing of defenses by a motion or by

  7  a verified or sworn answer at or before the hearing to show

  8  cause constitutes cause for the court not to enter the

  9  attached final judgment.

10         4.  State that the defendant has the right to file

11  affidavits or other papers at the time of the hearing and may

12  appear personally or by way of an attorney at the hearing.

13         5.  State that, if the defendant files defenses by a

14  motion, the hearing time may be used to hear the defendant's

15  motion.

16         6.  State that, if the defendant fails to appear at the

17  hearing to show cause or fails to file defenses by a motion or

18  by a verified or sworn answer or files an answer not

19  contesting the foreclosure, the defendant may be deemed to

20  have waived the right to a hearing and in such case the court

21  may enter a final judgment of foreclosure ordering the clerk

22  of the court to conduct a foreclosure sale.

23         7.  State that when the mortgage provides for

24  reasonable attorney's fees and the requested attorney's fees

25  do not exceed 3 percent of the principal amount owed at the

26  time of filing the complaint, it is unnecessary for the court

27  to hold a hearing or adjudge the requested attorney's fees to

28  be reasonable.

29         8.7.  Attach the final judgment of foreclosure the

30  court will enter, if the defendant waives the right to be

31  heard at the hearing on the order to show cause.

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    Florida Senate - 2000                           CS for SB 2594
    308-2083A-00




  1         9.8.  Require the mortgagee to serve a copy of the

  2  order to show cause on the mortgagor in the following manner:

  3         a.  If the mortgagor has been served with the complaint

  4  and original process, service of the order may be made in the

  5  manner provided in the Florida Rules of Civil Procedure.

  6         b.  If the mortgagor has not been served with the

  7  complaint and original process, the order to show cause,

  8  together with the summons and a copy of the complaint, shall

  9  be served on the mortgagor in the same manner as provided by

10  law for original process.

11

12  Any final judgment of foreclosure entered under this

13  subsection shall be for in rem relief only.  Nothing in this

14  subsection shall preclude the entry of a deficiency judgment

15  where otherwise allowed by law.

16         (b)  The right to be heard at the hearing to show cause

17  is waived if the defendant, after being served as provided by

18  law with an order to show cause, engages in conduct that

19  clearly shows that the defendant has relinquished the right to

20  be heard on that order.  The defendant's failure to file

21  defenses by a motion or by a sworn or verified answer or to

22  appear at the hearing duly scheduled on the order to show

23  cause presumptively constitutes conduct that clearly shows

24  that the defendant has relinquished the right to be heard.  If

25  a defendant files defenses by a motion or by a verified or

26  sworn answer at or before the hearing, such action constitutes

27  cause and shall preclude the entry of a final judgment at the

28  hearing to show cause.

29         (c)  In a mortgage foreclosure proceeding, when a

30  default judgment has been entered against the mortgagor and

31  the note or mortgage provides for the award of reasonable

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






    Florida Senate - 2000                           CS for SB 2594
    308-2083A-00




  1  attorney's fees, it is not necessary for the court to hold a

  2  hearing or adjudge the requested attorney's fees to be

  3  reasonable if the fees do not exceed 3 percent of the

  4  principal amount owed on the note or mortgage at the time of

  5  filing, even if the note or mortgage does not specify the

  6  percentage of the original amount that would be paid as

  7  liquidated damages.

  8         (d)(c)  If the court finds that the defendant has

  9  waived the right to be heard as provided in paragraph (b), the

10  court shall may promptly enter a final judgment of

11  foreclosure.  If the court finds that the defendant has not

12  waived the right to be heard on the order to show cause, the

13  court shall then determine whether there is cause not to enter

14  a final judgment of foreclosure.  If the court finds that the

15  defendant has not shown cause, the court shall may promptly

16  enter a judgment of foreclosure.

17         Section 2.  This act shall take effect upon becoming a

18  law.

19

20          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
21                             SB 2594

22

23  Section 702.10, F.S., is amended to provide that a hearing on
    the order to show cause must be held within 90 days of service
24  of the order on the defendant. The section is further amended
    to provide notice to the defendant that if an answer that does
25  not contest the foreclosure is filed the court may determine
    that the defendant waived the right to a hearing and the court
26  may enter a final judgment of foreclosure. Further, where a
    default judgment has been entered and the note or mortgage
27  provides for reasonable attorney's fees, the court is not
    required to hold a hearing or to adjudge the requested
28  attorney fees as reasonable where the fees do not exceed 3
    percent of the principal amount owed at the time of filing.
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