Florida Senate - 2012                                    SB 1266
       By Senator Simmons
       22-01464-12                                           20121266__
    1                        A bill to be entitled                      
    2         An act relating to actions for foreclosure; amending
    3         s. 702.10, F.S.; deleting a restriction on a mortgagee
    4         to request a court to order a mortgagor defendant to
    5         make payments or to vacate the premises during an
    6         action to foreclose on residential real estate; making
    7         technical and grammatical changes; providing an
    8         effective date.
   10  Be It Enacted by the Legislature of the State of Florida:
   12         Section 1. Subsection (2) 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         (2) In an action for foreclosure, other than residential
   17  real estate, the mortgagee may request that the court enter an
   18  order directing the mortgagor defendant to show cause why an
   19  order to make payments during the pendency of the foreclosure
   20  proceedings or an order to vacate the premises should not be
   21  entered.
   22         (a) The order shall:
   23         1. Set the date and time for hearing on the order to show
   24  cause. However, the date for the hearing may shall not be set
   25  sooner than 20 days after the service of the order. If Where
   26  service is obtained by publication, the date for the hearing may
   27  shall not be set sooner than 30 days after the first
   28  publication.
   29         2. Direct the time within which service of the order to
   30  show cause and the complaint shall be made upon the defendant.
   31         3. State that the defendant has the right to file
   32  affidavits or other papers at the time of the hearing and may
   33  appear personally or by way of an attorney at the hearing.
   34         4. State that, if the defendant fails to appear at the
   35  hearing to show cause and fails to file defenses by a motion or
   36  by a verified or sworn answer, the defendant is may be deemed to
   37  have waived the right to a hearing and in such case the court
   38  may enter an order to make payment or vacate the premises.
   39         5. Require the mortgagee to serve a copy of the order to
   40  show cause on the mortgagor in the following manner:
   41         a. If the mortgagor has been served with the complaint and
   42  original process, service of the order may be made in the manner
   43  provided in the Florida Rules of Civil Procedure.
   44         b. If the mortgagor has not been served with the complaint
   45  and original process, the order to show cause, together with the
   46  summons and a copy of the complaint, shall be served on the
   47  mortgagor in the same manner as provided by law for original
   48  process.
   49         (b) The right to be heard at the hearing to show cause is
   50  waived if the defendant, after being served as provided by law
   51  with an order to show cause, engages in conduct that clearly
   52  shows that the defendant has relinquished the right to be heard
   53  on that order. The defendant’s failure to file defenses by a
   54  motion or by a sworn or verified answer or to appear at the
   55  hearing duly scheduled on the order to show cause presumptively
   56  constitutes conduct that clearly shows that the defendant has
   57  relinquished the right to be heard.
   58         (c) If the court finds that the defendant has waived the
   59  right to be heard as provided in paragraph (b), the court may
   60  promptly enter an order requiring payment in the amount provided
   61  in paragraph (f) or an order to vacate.
   62         (d) If the court finds that the mortgagor has not waived
   63  the right to be heard on the order to show cause, the court
   64  shall, at the hearing on the order to show cause, consider the
   65  affidavits and other showings made by the parties appearing and
   66  make a determination of the probable validity of the underlying
   67  claim alleged against the mortgagor and the mortgagor’s
   68  defenses. If the court determines that the mortgagee is likely
   69  to prevail in the foreclosure action, the court shall enter an
   70  order requiring the mortgagor to make the payment described in
   71  paragraph (e) to the mortgagee and provide for a remedy as
   72  described in paragraph (f). However, the order shall be stayed
   73  pending final adjudication of the claims of the parties if the
   74  mortgagor files with the court a written undertaking executed by
   75  a surety approved by the court in an amount equal to the unpaid
   76  balance of the mortgage on the property, including all
   77  principal, interest, unpaid taxes, and insurance premiums paid
   78  by the mortgagee.
   79         (e) If In the event the court enters an order requiring the
   80  mortgagor to make payments to the mortgagee, payments shall be
   81  payable at such intervals and in such amounts provided for in
   82  the mortgage instrument before acceleration or maturity. The
   83  obligation to make payments pursuant to any order entered under
   84  this subsection shall commence from the date of the motion filed
   85  under this section hereunder. The order shall be served upon the
   86  mortgagor no later than 20 days before the date specified for
   87  the first payment. The order may permit, but may shall not
   88  require, the mortgagee to take all appropriate steps to secure
   89  the premises during the pendency of the foreclosure action.
   90         (f) If In the event the court enters an order requiring
   91  payments, the order shall also provide that the mortgagee is
   92  shall be entitled to possession of the premises upon the failure
   93  of the mortgagor to make the payment required in the order
   94  unless at the hearing on the order to show cause the court finds
   95  good cause to order some other method of enforcement of its
   96  order.
   97         (g) All amounts paid pursuant to this section shall be
   98  credited against the mortgage obligation in accordance with the
   99  terms of the loan documents;, provided, however, that any
  100  payments made under this section do shall not constitute a cure
  101  of any default or a waiver or any other defense to the mortgage
  102  foreclosure action.
  103         (h) Upon the filing of an affidavit with the clerk that the
  104  premises have not been vacated pursuant to the court order, the
  105  clerk shall issue to the sheriff a writ for possession which
  106  shall be governed by the provisions of s. 83.62.
  107         Section 2. This act shall take effect July 1, 2012.