House Bill hb0959
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Florida House of Representatives - 2001 HB 959
By Representative Gottlieb
1 A bill to be entitled
2 An act relating to mortgage foreclosure
3 proceedings; providing for expedited procedure
4 under certain conditions; providing that a
5 hearing and an adjudication that requested
6 attorney's fees are reasonable are not
7 necessary under certain conditions; providing
8 that attorney's fees when provided in a note or
9 mortgage constitute liquidated damages;
10 amending s. 702.10, F.S.; specifying
11 information to be included in an order to show
12 cause why a final judgment of foreclosure
13 should not be entered; providing that a hearing
14 on attorney's fees is unnecessary under certain
15 circumstances; requiring the court to enter a
16 final judgment of foreclosure under certain
17 circumstances; providing an effective date.
18
19 Be It Enacted by the Legislature of the State of Florida:
20
21 Section 1. (1) In uncontested mortgage foreclosure
22 proceedings in which the mortgagee waives the right to recoup
23 any deficiency judgment, the court shall enter final judgment
24 within 90 days from the date of the close of pleadings. For
25 the purposes of this subsection, a mortgage foreclosure
26 proceeding is uncontested if an answer not contesting the
27 foreclosure has been filed or a default judgment has been
28 entered by the court.
29 (2) In a mortgage foreclosure proceeding, when a
30 default judgment is entered against the mortgagor and the note
31 or mortgage provides for the award of reasonable attorney's
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Florida House of Representatives - 2001 HB 959
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1 fees, it is not necessary for the court to hold a hearing or
2 adjudge the requested attorney's fees to be reasonable if the
3 fees do not exceed 3 percent of the original principal amount
4 stated in the note or mortgage, even if the note or mortgage
5 does not specify the percentage of the original amount that
6 would be paid as liquidated damages. Such fees constitute
7 liquidated damages in any proceeding to enforce the note or
8 mortgage. This subsection shall not preclude a challenge to
9 the reasonableness of the attorney's fees.
10 Section 2. Subsection (1) of section 702.10, Florida
11 Statutes, is amended to read:
12 702.10 Order to show cause; entry of final judgment of
13 foreclosure; payment during foreclosure.--
14 (1) After a complaint in a foreclosure proceeding has
15 been filed, the mortgagee may request an order to show cause
16 for the entry of final judgment and the court shall
17 immediately review the complaint. If, upon examination of the
18 complaint, the court finds that the complaint is verified and
19 alleges a cause of action to foreclose on real property, the
20 court shall promptly issue an order directed to the defendant
21 to show cause why a final judgment of foreclosure should not
22 be entered.
23 (a) The order shall:
24 1. Set the date and time for hearing on the order to
25 show cause. However, the date for the hearing may shall not
26 be set sooner than 20 days after the service of the order.
27 When Where service is obtained by publication, the date for
28 the hearing may shall not be set sooner than 30 days after the
29 first publication. The hearing must be held within 60 days
30 after the date of service.
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1 2. Direct the time within which service of the order
2 to show cause and the complaint must shall be made upon the
3 defendant.
4 3. State that the filing of defenses by a motion or by
5 a verified or sworn answer at or before the hearing to show
6 cause constitutes cause for the court not to enter the
7 attached final judgment.
8 4. State that the defendant has the right to file
9 affidavits or other papers at the time of the hearing and may
10 appear personally or by way of an attorney at the hearing.
11 5. State that, if the defendant files defenses by a
12 motion, the hearing time may be used to hear the defendant's
13 motion.
14 6. State that, if the defendant fails to appear at the
15 hearing to show cause or fails to file defenses by a motion or
16 by a verified or sworn answer or files an answer not
17 contesting the foreclosure, the defendant may be considered
18 deemed to have waived the right to a hearing and in such case
19 the court may enter a final judgment of foreclosure ordering
20 the clerk of the court to conduct a foreclosure sale.
21 7. State that if the mortgage provides for reasonable
22 attorney's fees and the requested attorney's fees do not
23 exceed 3 percent of the principal amount owed at the time of
24 filing the complaint, it is unnecessary for the court to hold
25 a hearing or adjudge the requested attorney's fees to be
26 reasonable.
27 8.7. Attach the final judgment of foreclosure the
28 court will enter, if the defendant waives the right to be
29 heard at the hearing on the order to show cause.
30 9.8. Require the mortgagee to serve a copy of the
31 order to show cause on the mortgagor in the following manner:
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Florida House of Representatives - 2001 HB 959
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1 a. If the mortgagor has been served with the complaint
2 and original process, service of the order may be made in the
3 manner provided in the Florida Rules of Civil Procedure.
4 b. If the mortgagor has not been served with the
5 complaint and original process, the order to show cause,
6 together with the summons and a copy of the complaint, shall
7 be served on the mortgagor in the same manner as provided by
8 law for original process.
9
10 Any final judgment of foreclosure entered under this
11 subsection is shall be for in rem relief only. Nothing in
12 this subsection shall preclude the entry of a deficiency
13 judgment where otherwise allowed by law.
14 (b) The right to be heard at the hearing to show cause
15 is waived if the defendant, after being served as provided by
16 law with an order to show cause, engages in conduct that
17 clearly shows that the defendant has relinquished the right to
18 be heard on that order. The defendant's failure to file
19 defenses by a motion or by a sworn or verified answer or to
20 appear at the hearing duly scheduled on the order to show
21 cause presumptively constitutes conduct that clearly shows
22 that the defendant has relinquished the right to be heard. If
23 a defendant files defenses by a motion or by a verified or
24 sworn answer at or before the hearing, such action constitutes
25 cause and precludes shall preclude the entry of a final
26 judgment at the hearing to show cause.
27 (c) In a mortgage foreclosure proceeding, when a
28 default judgment has been entered against the mortgagor and
29 the note or mortgage provides for the award of reasonable
30 attorney's fees, it is unnecessary for the court to hold a
31 hearing or adjudge the requested attorney's fees to be
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Florida House of Representatives - 2001 HB 959
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1 reasonable if the fees do not exceed 3 percent of the
2 principal amount owed on the note or mortgage at the time of
3 filing, even if the note or mortgage does not specify the
4 percentage of the original amount that would be paid as
5 liquidated damages.
6 (d)(c) If the court finds that the defendant has
7 waived the right to be heard as provided in paragraph (b), the
8 court shall may promptly enter a final judgment of
9 foreclosure. If the court finds that the defendant has not
10 waived the right to be heard on the order to show cause, the
11 court shall then determine whether there is cause not to enter
12 a final judgment of foreclosure. If the court finds that the
13 defendant has not shown cause, the court may promptly enter a
14 judgment of foreclosure.
15 Section 3. This act shall take effect July 1, 2001.
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18 LEGISLATIVE SUMMARY
19 Provides that in certain uncontested mortgage foreclosure
proceedings the court must enter final judgment within 90
20 days from the date of the close of pleadings. Provides
that when a default judgment has been entered against a
21 mortgagor and the note or mortgage provides for the award
of reasonable attorney's fees, the court need not hold a
22 hearing or adjudge the requested fees to be reasonable if
the fees do not exceed 3 percent of the original
23 principal amount. Such attorney's fees constitute
liquidated damages in any proceeding to enforce the note
24 or mortgage. Provides that a hearing on an order to show
cause after a complaint in a foreclosure proceeding has
25 been filed must be held within 60 days after the date of
service of the order. Specifies information to be
26 included in an order to show cause why a final judgment
of foreclosure should not be entered. Provides that a
27 hearing on attorney's fees is unnecessary when a default
judgment has been entered against a mortgagor under
28 certain circumstances. Requires the court to enter a
final judgment of foreclosure under certain
29 circumstances.
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