Senate Bill sb0890c1

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    Florida Senate - 2001                            CS for SB 890

    By the Committee on Banking and Insurance; and Senator
    Campbell




    311-1699-01

  1                      A bill to be entitled

  2         An act relating to mortgages; amending s.

  3         697.07, F.S.; providing that rents in the

  4         control of a mortgagor are subject to

  5         assignment of rents; correcting provisions

  6         relating to assignment of rents; providing for

  7         expedited procedure under certain conditions;

  8         providing that a hearing and an adjudication

  9         that requested attorney's fees are reasonable

10         are not necessary under certain conditions;

11         providing that attorney's fees when provided in

12         a note or mortgage constitute liquidated

13         damages; amending s. 702.10, F.S.; specifying

14         information to be included in an order to show

15         cause why a final judgment of foreclosure

16         should not be entered; providing that a hearing

17         on attorney's fees is unnecessary under certain

18         circumstances; requiring the court to enter a

19         final judgment of foreclosure under certain

20         circumstances; providing an effective date.

21

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

23

24         Section 1.  Section 697.07, Florida Statutes, is

25  amended to read:

26         697.07  Assignment of rents.--

27         (1)  A mortgage or separate instrument may provide for

28  an assignment of rents of real property or any interest

29  therein as security for repayment of an indebtedness.

30         (2)  If such an assignment is made, the mortgagee shall

31  hold a lien on the rents, and the lien created by the

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    Florida Senate - 2001                            CS for SB 890
    311-1699-01




  1  assignment shall be perfected and effective against third

  2  parties upon recordation of the mortgage or separate

  3  instrument in the public records of the county in which the

  4  real property is located, according to law.

  5         (3)  Unless otherwise agreed to in writing by the

  6  mortgagee and mortgagor, the assignment of rents shall be

  7  enforceable upon the mortgagor's default and written demand

  8  for the rents made by the mortgagee to the mortgagor,

  9  whereupon the mortgagor shall turn over all rents in the

10  possession or control of the mortgagor at the time of the

11  written demand or collected thereafter (the "collected rents")

12  to the mortgagee less payment of any expenses authorized by

13  the mortgagee in writing.

14         (4)  Upon application by the mortgagee or mortgagor, in

15  a foreclosure action, and notwithstanding any asserted

16  defenses or counterclaims of the mortgagor, a court of

17  competent jurisdiction, pending final adjudication of any

18  action, may require the mortgagor to deposit the collected

19  rents into the registry of the court, or in such other

20  depository as the court may designate. However, the court may

21  authorize the use of the collected rents, before deposit into

22  the registry of the court or other depository, to:

23         (a)  Pay the reasonable expenses solely to protect,

24  preserve, and operate the real property, including, without

25  limitation, real estate taxes and insurance;

26         (b)  Escrow sums required by the mortgagee mortgagor or

27  separate assignment of rents assignment-of-rents instrument;

28  and

29         (c)  Make payments to the mortgagee.

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    Florida Senate - 2001                            CS for SB 890
    311-1699-01




  1  The court shall require the mortgagor to account to the court

  2  and the mortgagee for the receipt and use of the collected

  3  rents and may also impose other conditions on the mortgagor's

  4  use of the collected rents.

  5         (5)  Nothing herein shall preclude the court from

  6  granting any other appropriate relief regarding the collected

  7  rents pending final adjudication of the action. The

  8  undisbursed collected rents remaining in the possession of the

  9  mortgagor or in the registry of the court, or in such other

10  depository as ordered by the court, shall be disbursed at the

11  conclusion of the action in accordance with the court's final

12  judgment or decree.

13         (6)  The court shall expedite the hearing on the

14  application by the mortgagee or mortgagor to enforce the its

15  assignment of rents.  The procedures authorized by this

16  statute are in addition to any other rights or remedies of the

17  mortgagee or mortgagor under the mortgage, separate assignment

18  of rents assignment-of-rents instrument, promissory note, at

19  law, or in equity.

20         (7)  Nothing herein shall alter the lien priorities,

21  rights, or interests among mortgagees or other lienholders or

22  alter the rights of the mortgagee under the mortgage, separate

23  assignment of rents assignment-of-rents instrument, at law or

24  in equity, concerning rents collected before the written

25  demand by the mortgagee.  A mortgagee's enforcement of its

26  assignment assignments of rents under this statute shall not

27  operate to transfer title to any rents not received by the

28  mortgagee.

29         (8)  Any moneys received by the mortgagee pursuant to

30  this statute shall be applied by the mortgagee in accordance

31  with the mortgage, separate assignment of rents

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    Florida Senate - 2001                            CS for SB 890
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  1  assignment-of-rents instrument, or promissory note, and the

  2  mortgagee shall account to the mortgagor for such application.

  3         Section 2.  (1)  In uncontested mortgage-foreclosure

  4  proceedings in which the mortgagee waives the right to recoup

  5  any deficiency judgment, the court shall enter final judgment

  6  within 90 days from the date of the close of pleadings. For

  7  the purposes of this subsection a mortgage-foreclosure

  8  proceeding is uncontested if an answer not contesting the

  9  foreclosure has been filed or a default judgment has been

10  entered by the court.

11         (2)  In a mortgage foreclosure proceeding, when a

12  default judgment has been entered against the mortgagor and

13  the note or mortgage provides for the award of reasonable

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

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

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

17  principal amount owed at the time of filing the complaint,

18  even if the note or mortgage does not specify the percentage

19  of the original amount that would be paid as liquidated

20  damages. Such fees constitute liquidated damages in any

21  proceeding to enforce the note or mortgage. This section does

22  not preclude a challenge to the reasonableness of the

23  attorney's fees.

24         Section 3.  Subsection (1) of section 702.10, Florida

25  Statutes, is amended to read:

26         702.10  Order to show cause; entry of final judgment of

27  foreclosure; payment during foreclosure.--

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

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

30  for the entry of final judgment and the court shall

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

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    Florida Senate - 2001                            CS for SB 890
    311-1699-01




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

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

  3  court shall promptly issue an order directed to the defendant

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

  5  be entered.

  6         (a)  The order shall:

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

  8  show cause.  However, the date for the hearing may shall not

  9  be set sooner than 20 days after the service of the order.

10  When Where service is obtained by publication, the date for

11  the hearing may shall not be set sooner than 30 days after the

12  first publication. The hearing must be held within 60 days

13  after the date of service.

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

15  to show cause and the complaint must shall be made upon the

16  defendant.

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

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

19  cause constitutes cause for the court not to enter the

20  attached final judgment.

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

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

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

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

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

26  motion.

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

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

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

30  contesting the foreclosure, the defendant may be considered

31  deemed to have waived the right to a hearing and in such case

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    Florida Senate - 2001                            CS for SB 890
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  1  the court may enter a final judgment of foreclosure ordering

  2  the clerk of the court to conduct a foreclosure sale.

  3         7.  State that if the mortgage provides for reasonable

  4  attorney's fees and the requested attorney's fees do not

  5  exceed 3 percent of the principal amount owed at the time of

  6  filing the complaint, it is unnecessary for the court to hold

  7  a hearing or adjudge the requested attorney's fees to be

  8  reasonable.

  9         8.7.  Attach the final judgment of foreclosure the

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

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

12         9.8.  Require the mortgagee to serve a copy of the

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

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

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

16  manner provided in the Florida Rules of Civil Procedure.

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

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

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

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

21  law for original process.

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23  Any final judgment of foreclosure entered under this

24  subsection is shall be for in rem relief only. Nothing in this

25  subsection shall preclude the entry of a deficiency judgment

26  where otherwise allowed by law.

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

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

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

30  clearly shows that the defendant has relinquished the right to

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

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    Florida Senate - 2001                            CS for SB 890
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  1  defenses by a motion or by a sworn or verified answer or to

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

  3  cause presumptively constitutes conduct that clearly shows

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

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

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

  7  cause and precludes shall preclude the entry of a final

  8  judgment at the hearing to show cause.

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

10  default judgment has been entered against the mortgagor and

11  the note or mortgage provides for the award of reasonable

12  attorney's fees, it is unnecessary for the court to hold a

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

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

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

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

17  percentage of the original amount that would be paid as

18  liquidated damages.

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

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

21  court shall may promptly enter a final judgment of

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

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

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

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

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

27  enter a judgment of foreclosure.

28         Section 4.  This act shall take effect July 1, 2001.

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    Florida Senate - 2001                            CS for SB 890
    311-1699-01




  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                              SB 890

  3

  4  Amends s. 702.10, F.S., which provides an expedited process
    for mortgage foreclosure proceedings, to require, rather than
  5  allow, the court to promptly enter a judgment of foreclosure,
    if the defendant has not shown cause not to enter a final
  6  judgment.

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