House Bill hb0959e1

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                                           HB 959, First Engrossed



  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 language

  6         regarding 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 certain

17         notices be published in a newspaper; providing

18         that a hearing on attorney's fees is

19         unnecessary under certain circumstances;

20         requiring the court to enter a final judgment

21         of foreclosure under certain circumstances;

22         providing an effective date.

23  

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

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26         Section 1.  Section 697.07, Florida Statutes, is

27  amended to read:

28         697.07  Assignment of rents.--

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

30  an assignment of rents of real property or any interest

31  therein as security for repayment of an indebtedness.


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                                           HB 959, First Engrossed



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

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

  3  assignment shall be perfected and effective against third

  4  parties upon recordation of the mortgage or separate

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

  6  real property is located, according to law.

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

  8  mortgagee and mortgagor, the assignment of rents shall be

  9  enforceable upon the mortgagor's default and written demand

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

11  whereupon the mortgagor shall turn over all rents in the

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

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

14  to the mortgagee less payment of any expenses authorized by

15  the mortgagee in writing.

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

17  a foreclosure action, and notwithstanding any asserted

18  defenses or counterclaims of the mortgagor, a court of

19  competent jurisdiction, pending final adjudication of any

20  action, may require the mortgagor to deposit the collected

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

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

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

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

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

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

27  limitation, real estate taxes and insurance;

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

29  separate assignment of rents assignment-of-rents instrument;

30  and

31         (c)  Make payments to the mortgagee.


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                                           HB 959, First Engrossed



  1  

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

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

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

  5  use of the collected rents.

  6         (5)  Nothing herein shall preclude the court from

  7  granting any other appropriate relief regarding the collected

  8  rents pending final adjudication of the action. The

  9  undisbursed collected rents remaining in the possession of the

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

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

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

13  judgment or decree.

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

15  application by the mortgagee or mortgagor to enforce the its

16  assignment of rents.  The procedures authorized by this

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

18  mortgagee or mortgagor under the mortgage, separate assignment

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

20  law, or in equity.

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

22  rights, or interests among mortgagees or other lienholders or

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

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

25  in equity, concerning rents collected before the written

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

27  assignment assignments of rents under this statute shall not

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

29  mortgagee.

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

31  this statute shall be applied by the mortgagee in accordance


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                                           HB 959, First Engrossed



  1  with the mortgage, separate assignment of rents

  2  assignment-of-rents instrument, or promissory note, and the

  3  mortgagee shall account to the mortgagor for such application.

  4         Section 2.  (1)  In uncontested mortgage foreclosure

  5  proceedings in which the mortgagee waives the right to recoup

  6  any deficiency judgment, the court shall enter final judgment

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

  8  the purposes of this subsection, a mortgage foreclosure

  9  proceeding is uncontested if an answer not contesting the

10  foreclosure has been filed or a default judgment has been

11  entered by the court.

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

13  default judgment is entered against the mortgagor and the note

14  or mortgage provides for the award of reasonable attorney's

15  fees, it is not necessary for the court to hold a hearing or

16  adjudge the requested attorney's fees to be reasonable if the

17  fees do not exceed 3 percent of the principal amount owed at

18  the time of filing the complaint, even if the note or mortgage

19  does not specify the percentage of the original amount that

20  would be paid as liquidated damages. Such fees constitute

21  liquidated damages in any proceeding to enforce the note or

22  mortgage. This subsection shall not preclude a challenge to

23  the reasonableness of the 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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                                           HB 959, First Engrossed



  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. Failure to hold the hearing within

14  such time shall affect neither the validity of the order to

15  show cause nor the jurisdiction of the court to issue

16  subsequent orders.

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

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

19  defendant.

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

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

22  cause constitutes cause for the court not to enter the

23  attached final judgment.

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

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

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

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

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

29  motion.

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

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


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                                           HB 959, First Engrossed



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

  2  contesting the foreclosure, the defendant may be considered

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

  4  the court may enter a final judgment of foreclosure ordering

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

  6         7.  State that if the mortgage provides for reasonable

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

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

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

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

11  reasonable.

12         8.7.  Attach the final judgment of foreclosure the

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

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

15         9.8.  Require the mortgagee to serve a copy of the

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

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

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

19  manner provided in the Florida Rules of Civil Procedure.

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

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

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

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

24  law for original process.

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26  Any final judgment of foreclosure entered under this

27  subsection is shall be for in rem relief only.  Nothing in

28  this subsection shall preclude the entry of a deficiency

29  judgment where otherwise allowed by law. Whenever a legal

30  advertisement, publication, or notice relating to a

31  foreclosure proceeding is required to be placed in a


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                                           HB 959, First Engrossed



  1  newspaper, such advertisement, publication, or notice shall be

  2  placed directly by the attorney for the party, by the party if

  3  it is acting pro se, or by the clerk of the court.

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

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

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

  7  clearly shows that the defendant has relinquished the right to

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

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

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

11  cause presumptively constitutes conduct that clearly shows

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

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

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

15  cause and precludes shall preclude the entry of a final

16  judgment at the hearing to show cause.

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

18  default judgment has been entered against the mortgagor and

19  the note or mortgage provides for the award of reasonable

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

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

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

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

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

25  percentage of the original amount that would be paid as

26  liquidated damages.

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

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

29  court shall may promptly enter a final judgment of

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

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


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                                           HB 959, First Engrossed



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

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

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

  4  enter a judgment of foreclosure.

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

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