Florida Senate - 2012 CS for SB 1890
By the Committee on Judiciary; and Senator Latvala
590-03622-12 20121890c1
1 A bill to be entitled
2 An act relating to mortgage foreclosure proceedings;
3 amending s. 95.11, F.S.; specifying the limitation
4 period for initiating an action to collect a
5 deficiency following the foreclosure of certain
6 dwellings; providing for application to existing
7 causes of action; amending s. 701.04, F.S.; specifying
8 requirements for a holder of a mortgage to provide an
9 estoppel statement to certain persons requesting the
10 payoff amount for the mortgage; specifying the
11 required contents of the estoppel statement; requiring
12 a person who provides a mortgage satisfaction to
13 provide supplemental information if the person was not
14 the owner of the mortgage; requiring certain persons
15 who are not a mortgagor to provide information showing
16 the requestor’s ownership interest in the property to
17 the mortgageholder when making a request for the
18 payoff amount of the mortgage; specifying documents
19 that the person who provides the mortgage satisfaction
20 must provide to the payor of a mortgage note;
21 specifying a fee for failing to timely provide the
22 required documents to the payor; authorizing the use
23 of a summary procedure to compel compliance with
24 requirements to provide an estoppel statement or the
25 documents that must be provided by the person who
26 provides a mortgage satisfaction; creating s. 701.045,
27 F.S.; requiring a party who is owed and who is fully
28 paid money due on a lien or judgment to execute in
29 writing an instrument acknowledging satisfaction of
30 the lien or judgment, to have the instrument recorded
31 in the official records of the appropriate county
32 requiring the party, and to send within a specified
33 time the recorded instrument to the person who made
34 full payment; providing for attorney fees and costs;
35 requiring the party receiving full payment for a
36 judgment for which a writ of execution has been
37 issued, docketed, and indexed with a sheriff to
38 request, in writing and addressed to the sheriff, the
39 return of the satisfied writ of execution; requiring
40 compliance with certain procedures; creating s.
41 702.015, F.S.; specifying required contents of a
42 complaint seeking to foreclose on certain types of
43 residential properties with respect to the authority
44 of the plaintiff to foreclose on the note and the
45 location of the note; creating s. 702.036, F.S.;
46 requiring a court to treat a challenge to a final
47 judgment of foreclosure as a claim for monetary
48 damages under certain circumstances; amending s.
49 702.06, F.S.; providing that a person who forecloses
50 on a mortgage may not initiate an action to recover a
51 deficiency if the court in the foreclosure action has
52 granted or denied a claim for a deficiency judgment;
53 limiting the amount of the deficiency judgment;
54 requiring a separate action to recover a deficiency be
55 initiated within a certain time period; amending s.
56 702.10, F.S.; expanding the class of persons
57 authorized to move for expedited foreclosure; defining
58 the term “lienholder”; providing requirements and
59 procedures with respect to an order directed to
60 defendants to show cause why a final judgment of
61 foreclosure should not be entered; providing that
62 certain failures by a defendant to make certain
63 filings or to make certain appearances may have
64 specified legal consequences; requiring the court to
65 enter a final judgment of foreclosure and order a
66 foreclosure sale under certain circumstances; revising
67 a restriction on a mortgagee to request a court to
68 order a mortgagor defendant to make payments or to
69 vacate the premises during an action to foreclose on
70 residential real estate to provide that the
71 restriction applies to all but owner-occupied
72 residential property; providing a presumption
73 regarding owner-occupied residential property;
74 requesting the Supreme Court to adopt rules and forms
75 for use in expedited foreclosure proceedings; creating
76 s. 702.11, F.S.; specifying security that may be
77 determined by the court as adequate protection against
78 a loss by another person seeking to enforce the
79 mortgage; authorizing the holder of a note to initiate
80 an action against a person who wrongfully claimed to
81 be entitled to enforce the note for damages and
82 attorney fees and costs; authorizing the holder of the
83 note to pursue the recovery against any adequate
84 protections given by the person who wrongfully claimed
85 to be entitled to enforce the note; creating s.
86 702.13, F.S.; establishing expedited foreclosure
87 proceedings for abandoned residential real property
88 and procedures and requirements with respect thereto;
89 providing for application of the act; providing an
90 effective date.
91
92 Be It Enacted by the Legislature of the State of Florida:
93
94 Section 1. Paragraph (b) of subsection (2) and subsection
95 (5) of section 95.11, Florida Statutes, are amended to read:
96 95.11 Limitations other than for the recovery of real
97 property.—Actions other than for recovery of real property shall
98 be commenced as follows:
99 (2) WITHIN FIVE YEARS.—
100 (b) A legal or equitable action on a contract, obligation,
101 or liability founded on a written instrument, except for an
102 action to enforce a claim against a payment bond, which shall be
103 governed by the applicable provisions of ss. 255.05(10) and
104 713.23(1)(e), and except for an action for a deficiency
105 judgment, which shall be governed by paragraph (5)(h) and s.
106 702.06.
107 (5) WITHIN ONE YEAR.—
108 (a) An action for specific performance of a contract.
109 (b) An action to enforce an equitable lien arising from the
110 furnishing of labor, services, or material for the improvement
111 of real property.
112 (c) An action to enforce rights under the Uniform
113 Commercial Code—Letters of Credit, chapter 675.
114 (d) An action against any guaranty association and its
115 insured, with the period running from the date of the deadline
116 for filing claims in the order of liquidation.
117 (e) An action to enforce any claim against a payment bond
118 on which the principal is a contractor, subcontractor, or sub
119 subcontractor as defined in s. 713.01, for private work as well
120 as public work, from the last furnishing of labor, services, or
121 materials or from the last furnishing of labor, services, or
122 materials by the contractor if the contractor is the principal
123 on a bond on the same construction project, whichever is later.
124 (f) Except for actions described in subsection (8), a
125 petition for extraordinary writ, other than a petition
126 challenging a criminal conviction, filed by or on behalf of a
127 prisoner as defined in s. 57.085.
128 (g) Except for actions described in subsection (8), an
129 action brought by or on behalf of a prisoner, as defined in s.
130 57.085, relating to the conditions of the prisoner’s
131 confinement.
132 (h) An action under s. 702.06, to collect a deficiency
133 following the foreclosure of an owner-occupied, one-family to
134 four-family dwelling unit.
135 Section 2. The amendments to s. 95.11, Florida Statutes,
136 made by this act shall apply to any action commenced on or after
137 July 1, 2012, regardless of when the cause of action accrues,
138 except that any action that would not have been barred under s.
139 95.11(2)(b), Florida Statutes, before the changes made by this
140 act may be commenced no later than 5 years after the action
141 accrues and in no event later than July 1, 2014, and if the
142 action is not commenced by that date, it is barred by the
143 changes made by this act.
144 Section 3. Section 701.04, Florida Statutes, is amended to
145 read:
146 701.04 Cancellation of mortgages, liens, and judgments.—
147 (1)(a) If a mortgagor, a holder of an interest in property
148 encumbered by a mortgage, or a designee of either makes a
149 written request for the payoff amount of the mortgage as of a
150 certain date, the holder of the mortgage shall provide a written
151 estoppel statement executed by an officer or authorized agent of
152 the holder of the mortgage to the person making the request
153 within 15 days after the date the request was received. The
154 estoppel statement shall be delivered to the place, facsimile
155 number, or e-mail address designated in the written request. The
156 estoppel statement shall set Within 14 days after receipt of the
157 written request of a mortgagor, the holder of a mortgage shall
158 deliver to the mortgagor at a place designated in the written
159 request an estoppel letter setting forth:
160 1. The unpaid balance of the loan secured by the mortgage,
161 including principal, all accrued interest, and any other charges
162 properly due under or secured by the mortgage as of the date
163 specified in the request. and
164 2. Interest on a per-day basis for the unpaid balance for a
165 period of at least 20 days after the date specified in the
166 request.
167 3. A certification that the party providing the estoppel
168 statement is the holder of the original promissory note secured
169 thereby, or is the person or agent of the person entitled to
170 enforce the note pursuant to s. 673.3011.
171 4. A commitment to comply with paragraph (d) upon timely
172 receipt of the amounts set forth in the estoppel statement.
173 (b) The mortgagee may not charge a fee for the preparation
174 or delivery of the first two estoppel statements requested for
175 any one mortgage in any calendar month. This paragraph is not
176 intended to limit requirements of federal law.
177 (c) Subsequent owners of the property encumbered by the
178 mortgage, and creditors and lienholders taking an interest in
179 the property for a valuable consideration, and those claiming
180 by, through, and under them, may rely on the estoppel statement
181 and are entitled to the benefits of the statement.
182 (d) Whenever the amount of money due on a any mortgage,
183 lien, or judgment is shall be fully paid to the person or party
184 entitled to the payment thereof, or all obligations secured by
185 the mortgage or lien are otherwise satisfied, the mortgagee,
186 creditor, or assignee, or the attorney of record in the case of
187 a judgment, to whom such payment has shall have been made or
188 satisfaction has been given, shall execute in writing an
189 instrument acknowledging satisfaction of the said mortgage,
190 lien, or judgment and have the same acknowledged, or proven, and
191 recorded duly entered of record in the official records book
192 provided by law for such purposes in the proper county. If the
193 person or party executing the satisfaction is not shown as the
194 owner of the mortgage in the official records, the instrument
195 shall be supplemented by an affidavit that the person executing
196 the satisfaction is in physical possession of the original
197 promissory note secured by the mortgage or was entitled to
198 enforce the note pursuant to s. 673.3011. If the person was
199 entitled only to enforce the note, but was not in possession of
200 the note, the person shall provide in the affidavit the specific
201 factual basis for such authority.
202 (e) If the written request for the payoff amount for the
203 mortgage as of a certain date is not from the mortgagor or the
204 designee of the mortgagor, the request must include a copy of
205 the instrument or instruments showing the requestor’s ownership
206 interest in the property. The mortgageholder, in response to the
207 request, is not required to itemize the unpaid balance of the
208 loan secured by the mortgage.
209 (2)(a) Within 60 days after of the date of receipt of the
210 full payment of the mortgage in accord with the estoppel
211 statement, lien, or judgment, the person required to acknowledge
212 satisfaction of the mortgage, lien, or judgment shall send or
213 cause to be sent the recorded satisfaction to the maker of the
214 promissory note, or such other person as may be designated in
215 writing by the payor at or after the final payment, a certified
216 copy of the recorded satisfaction. The person shall also send to
217 the payor of a mortgage note:
218 1. The original promissory note, marked “paid in full”; or
219 2. An affidavit stating that the note was lost, destroyed,
220 or stolen, together with exhibits in compliance with s. 702.015
221 and evidence of adequate protections as provided in s. 702.11.
222 (b) If the documents required by this subsection are not
223 delivered within 60 days, the party who received payment on the
224 note or mortgage shall pay to the maker of the promissory note
225 or its designee a fee in the amount of $100 per day for each day
226 beyond 60 days that the documents have not been delivered. The
227 aggregate fees under this paragraph may not exceed $5,000.
228 (3) A summary procedure pursuant to s. 51.011 may be
229 brought to compel compliance with the requirements of this
230 section, and the prevailing party shall recover reasonable
231 attorney fees and costs. The court may limit recovery of
232 attorney fees and costs if an unreasonable number of requests
233 for estoppel statements have been made person who has made the
234 full payment. In the case of a civil action arising out of the
235 provisions of this section, the prevailing party shall be
236 entitled to attorney’s fees and costs.
237 (4)(2) Whenever a writ of execution has been issued,
238 docketed, and indexed with a sheriff and the judgment upon which
239 it was issued has been fully paid, it shall be the
240 responsibility of the party receiving payment to request, in
241 writing, addressed to the sheriff, return of the writ of
242 execution as fully satisfied.
243 Section 4. Section 701.045, Florida Statutes, is created to
244 read:
245 701.045 Cancellation of liens and judgments.—
246 (1) If the amount of money due on any lien, other than a
247 mortgage, or any judgment is fully paid to the party entitled to
248 such payment or to the creditor or assignee, the party, the
249 creditor, or the assignee to whom such payment has been made
250 shall execute in writing an instrument acknowledging
251 satisfaction of the lien or judgment, have the instrument
252 acknowledged or proven, and have the instrument duly entered of
253 record in the official records in the appropriate county. Within
254 60 days after the date of receipt of the full payment of the
255 lien or judgment, the party required to acknowledge satisfaction
256 of the lien or judgment shall send or cause to be sent the
257 recorded satisfaction instrument to the party who has made the
258 full payment. In the case of a civil action arising out of this
259 section, the prevailing party is entitled to attorney fees and
260 costs.
261 (2) If a writ of execution has been issued, docketed, and
262 indexed with a sheriff and the judgment upon which it was issued
263 has been fully paid, the party receiving payment must request,
264 in writing and addressed to the sheriff, return of the writ of
265 execution as fully satisfied.
266 (3) The party receiving full payment of any judgment shall
267 also comply with s. 55.206, as appropriate.
268 Section 5. Section 702.015, Florida Statutes, is created to
269 read:
270 702.015 Elements of complaint; lost, destroyed, or stolen
271 note affidavit.—
272 (1) A complaint that seeks to foreclose a mortgage or other
273 lien on residential real property, including individual units of
274 condominiums and cooperatives, designed principally for
275 occupation by from one to four families, but not including an
276 interest in a timeshare property, which secures a promissory
277 note must:
278 (a) Contain affirmative allegations expressly made by the
279 plaintiff at the time the proceeding is commenced that the
280 plaintiff is the holder of the original note secured by the
281 mortgage; or
282 (b) Allege with specificity the factual basis by which the
283 plaintiff is a person entitled to enforce the note under s.
284 673.3011.
285 (2) If a party has been delegated the authority to
286 institute a mortgage foreclosure action on behalf of the holder
287 of the note, the complaint shall describe the authority of the
288 plaintiff and identify, with specificity, the document that
289 grants the plaintiff the authority to act on behalf of the
290 holder of the note. This subsection is intended to require
291 initial disclosure of status and pertinent facts and not to
292 modify law regarding standing or real parties in interest.
293 (3) If the plaintiff is in physical possession of the
294 original promissory note, the plaintiff must file with the
295 court, contemporaneously with and as a condition precedent to
296 the filing of the complaint for foreclosure, certification,
297 under penalty of perjury, that the plaintiff is in physical
298 possession of the original promissory note. The certification
299 must set forth the physical location of the note, the name and
300 title of the individual giving the certification, the name of
301 the person who personally verified such physical possession, and
302 the time and date on which the possession was verified. Correct
303 copies of the note and all allonges to the note must be attached
304 to the certification. The original note and the allonges must be
305 filed with the court before the entry of any judgment of
306 foreclosure or judgment on the note.
307 (4) If the plaintiff seeks to enforce a lost, destroyed, or
308 stolen instrument, an affidavit executed under penalty of
309 perjury must be attached to the complaint. The affidavit must:
310 (a) Detail a clear chain of all assignments for the
311 promissory note that is the subject of the action.
312 (b) Set forth facts showing that the plaintiff is entitled
313 to enforce a lost, destroyed, or stolen instrument pursuant to
314 s. 673.3091.
315 (c) Include as exhibits to the affidavit such copies of the
316 note and the allonges to the note, assignments of mortgage,
317 audit reports showing physical receipt of the original note, or
318 other evidence of the acquisition, ownership, and possession of
319 the note as may be available to the plaintiff.
320 Section 6. Section 702.036, Florida Statutes, is created to
321 read:
322 702.036 Finality of mortgage foreclosure judgment.—
323 (1)(a) In an action or proceeding in which a party seeks to
324 set aside, invalidate, or challenge the validity of a final
325 judgment of foreclosure of a mortgage or to establish or
326 reestablish a lien or encumbrance on the property in abrogation
327 of the final judgment of foreclosure of a mortgage, the court
328 shall treat such request solely as a claim for monetary damages
329 and may not grant relief that adversely affects the quality or
330 character of the title to the property if:
331 1. A final judgment of foreclosure of a mortgage has been
332 entered as to a property;
333 2. All applicable appeals periods have run as to the final
334 judgment of foreclosure of a mortgage and an appeal has not been
335 filed or, if an appeal has been filed, it has been finally
336 resolved;
337 3. The property has been acquired for value by a person not
338 affiliated with the foreclosing lender or the foreclosed owner,
339 at a time in which no lis pendens regarding the suit to set
340 aside, invalidate, or challenge the foreclosure appears in the
341 official records of the county where the property is located;
342 and
343 4. The party seeking relief from the final judgment of
344 foreclosure of a mortgage has been properly served in the
345 foreclosure lawsuit as provided in chapter 48 or chapter 49.
346 (b) This subsection does not limit the right to pursue any
347 other relief to which a person may be entitled, including, but
348 not limited to, compensatory damages, punitive damages,
349 statutory damages, consequential damages, injunctive relief, or
350 fees and costs, and which does not adversely affect the
351 ownership of the title to the property as vested in the
352 unaffiliated purchaser for value.
353 (2) For purposes of this section, the following, without
354 limitation, shall be considered persons affiliated with the
355 foreclosing lender:
356 (a) The foreclosing lender or any loan servicer for the
357 loan being foreclosed;
358 (b) Any past or present owner or holder of the loan being
359 foreclosed;
360 (c) Any maintenance company, holding company, foreclosure
361 services company, or law firm under contract to any entity
362 listed in paragraph (a), paragraph (b), or this paragraph, with
363 regard to the loan being foreclosed; or
364 (d) Any parent entity, subsidiary, or other person that
365 directly, or indirectly through one or more intermediaries,
366 controls or is controlled by, or is under common control with,
367 any entity listed in paragraph (a), paragraph (b), or paragraph
368 (c).
369 (3) After foreclosure of a mortgage based upon the
370 enforcement of a lost, destroyed, or stolen note, a person who
371 is not a party to the underlying foreclosure action but who
372 claims to be the actual holder of the promissory note secured by
373 the foreclosed mortgage does not have a claim against the
374 foreclosed property after it has been conveyed for valuable
375 consideration to a person not affiliated with the foreclosing
376 lender or the foreclosed owner. This section does not preclude
377 the actual holder of the note from pursuing recovery from any
378 adequate protection given under s. 673.3091 by the person who
379 enforced the note or from the party who wrongfully claimed to be
380 the owner or holder of the promissory note or the maker of the
381 note or from any other person against whom the actual holder of
382 the note may have a claim relating to the note.
383 Section 7. Section 702.06, Florida Statutes, is amended to
384 read:
385 702.06 Deficiency decree; common-law suit to recover
386 deficiency.—
387 (1) In an action all suits for the foreclosure of a
388 mortgage, mortgages heretofore or hereafter executed the entry
389 of a deficiency decree for any portion of a deficiency, should
390 one exist, must shall be commenced within 1 year after the sale
391 date of the mortgaged property pursuant to a court foreclosure
392 sale or short sale. If not commenced within 1 year after sale,
393 any attempt to collect a deficiency judgment shall be barred.
394 The amount of the deficiency judgment may not exceed the
395 difference between the judgment amount or, in the case of a
396 short sale, the outstanding debt, and the fair market value of
397 the property on the date of sale. the sound judicial discretion
398 of the court, but The complainant shall also have the right to
399 sue at common law to recover such deficiency, unless the court
400 in the foreclosure action has granted or denied a claim for a
401 deficiency judgment provided no suit at law to recover such
402 deficiency shall be maintained against the original mortgagor in
403 cases where the mortgage is for the purchase price of the
404 property involved and where the original mortgagee becomes the
405 purchaser thereof at foreclosure sale and also is granted a
406 deficiency decree against the original mortgagor.
407 (2)(a) With respect to an owner-occupied, one-family to
408 four-family dwelling unit, the party to whom a deficiency is
409 owing may move for the entry of a deficiency judgment in the
410 foreclosure action or file a separate action for collection of
411 the deficiency. The separate action must be filed within 1 year
412 after the property has vested in the foreclosing lender or other
413 purchaser at the foreclosure sale.
414 (b) If a deficiency is not pursued within the time period
415 specified in this subsection, the vesting of the property or
416 proceeds of the sale, regardless of the amount, shall be deemed
417 to be in full satisfaction of the judgment debt and a right to
418 recover any deficiency in any subsequent action or proceeding is
419 extinguished.
420 (c) This subsection does not restrict the authority of the
421 court to determine the entitlement to any assets held by any
422 receiver or any assignee of the rents and profits of the
423 property.
424 Section 8. Section 702.10, Florida Statutes, is amended to
425 read:
426 702.10 Order to show cause; entry of final judgment of
427 foreclosure; payment during foreclosure.—
428 (1) A lienholder After a complaint in a foreclosure
429 proceeding has been filed, the mortgagee may request an order to
430 show cause for the entry of final judgment in a foreclosure
431 action. For purposes of this section, the term “lienholder”
432 includes the plaintiff and a defendant to the action who holds a
433 lien encumbering the property or a defendant who, by virtue of
434 its status as a condominium association, cooperative
435 association, or homeowners’ association, may file a lien against
436 the real property subject to foreclosure. Upon filing, and the
437 court shall immediately review the request and the court file in
438 chambers and without a hearing complaint. If, upon examination
439 of the court file complaint, the court finds that the complaint
440 is verified, complies with s. 702.015, and alleges a cause of
441 action to foreclose on real property, the court shall promptly
442 issue an order directed to the other parties named in the action
443 defendant to show cause why a final judgment of foreclosure
444 should not be entered.
445 (a) The order shall:
446 1. Set the date and time for a hearing on the order to show
447 cause. However, The date for the hearing may not be set sooner
448 than 20 days after the service of the order. When service is
449 obtained by publication, the date for the hearing may not be set
450 sooner than 30 days after the first publication. The hearing
451 must be held within 90 60 days after the date of service.
452 Failure to hold the hearing within such time does not affect the
453 validity of the order to show cause or the jurisdiction of the
454 court to issue subsequent orders.
455 2. Direct the time within which service of the order to
456 show cause and the complaint must be made upon the defendant.
457 3. State that the filing of defenses by a motion,
458 responsive pleading, affidavits, or other papers or by a
459 verified or sworn answer at or before the hearing to show cause
460 may constitute constitutes cause for the court not to enter the
461 attached final judgment.
462 4. State that a the defendant has the right to file
463 affidavits or other papers before at the time of the hearing to
464 show cause and may appear personally or by way of an attorney at
465 the hearing.
466 5. State that, if a the defendant files defenses by a
467 motion, a verified or sworn answer, affidavits, or other papers
468 or appears personally or by way of an attorney at the time of
469 the hearing, the hearing time will may be used to hear and
470 consider the defendant’s motion, answer, affidavits, other
471 papers, and other evidence and argument as may be presented by
472 the defendant or the defendant’s attorney. The order shall also
473 state that the court may enter an order of final judgment of
474 foreclosure, which must be based on clear and convincing
475 evidence and the arguments presented. If such an order is
476 entered, the court shall enter a final judgment of foreclosure
477 ordering the clerk of the court to conduct a foreclosure sale.
478 6. State that, if a the defendant fails to appear at the
479 hearing to show cause or fails to file defenses by a motion or
480 by a verified or sworn answer or files an answer not contesting
481 the foreclosure, such the defendant may be considered to have
482 waived the right to a hearing, and in such case, the court may
483 enter a default against such defendant and, if appropriate, a
484 final judgment of foreclosure ordering the clerk of the court to
485 conduct a foreclosure sale.
486 7. State that if the mortgage provides for reasonable
487 attorney attorney’s fees and the requested attorney attorney’s
488 fees do not exceed 3 percent of the principal amount owed at the
489 time of filing the complaint, it is unnecessary for the court to
490 hold a hearing or adjudge the requested attorney attorney’s fees
491 to be reasonable.
492 8. Attach the form of the proposed final judgment of
493 foreclosure which the movant requests the court to will enter,
494 if the defendant waives the right to be heard at the hearing on
495 the order to show cause. The form may contain blanks for the
496 court to enter the amounts due.
497 9. Require the party seeking final judgment mortgagee to
498 serve a copy of the order to show cause on the other parties the
499 mortgagor in the following manner:
500 a. If a party the mortgagor has been served with the
501 complaint and original process, or the other party is the
502 plaintiff in the action, service of the order to show cause on
503 that party order may be made in the manner provided in the
504 Florida Rules of Civil Procedure.
505 b. If a defendant the mortgagor has not been served with
506 the complaint and original process, the order to show cause,
507 together with the summons and a copy of the complaint, shall be
508 served on the party mortgagor in the same manner as provided by
509 law for original process.
510
511 Any final judgment of foreclosure entered under this subsection
512 is for in rem relief only. Nothing in This subsection does not
513 shall preclude the entry of a deficiency judgment where
514 otherwise allowed by law. It is the intent of the Legislature
515 that this alternative procedure may run simultaneously with
516 other court procedures.
517 (b) The right to be heard at the hearing to show cause is
518 waived if a the defendant, after being served as provided by law
519 with an order to show cause, engages in conduct that clearly
520 shows that the defendant has relinquished the right to be heard
521 on that order. The defendant’s failure to file defenses by a
522 motion or by a sworn or verified answer, affidavits, or other
523 papers or to appear personally or by way of an attorney at the
524 hearing duly scheduled on the order to show cause presumptively
525 constitutes conduct that clearly shows that the defendant has
526 relinquished the right to be heard. If a defendant files
527 defenses by a motion, or by a verified or sworn answer,
528 affidavits, or other papers at or before the hearing, such
529 action may constitute constitutes cause and may preclude
530 precludes the entry of a final judgment at the hearing to show
531 cause.
532 (c) In a mortgage foreclosure proceeding, when a final
533 default judgment of foreclosure has been entered against the
534 mortgagor and the note or mortgage provides for the award of
535 reasonable attorney attorney’s fees, it is unnecessary for the
536 court to hold a hearing or adjudge the requested attorney
537 attorney’s fees to be reasonable if the fees do not exceed 3
538 percent of the principal amount owed on the note or mortgage at
539 the time of filing, even if the note or mortgage does not
540 specify the percentage of the original amount that would be paid
541 as liquidated damages.
542 (d) If the court finds that all defendants have the
543 defendant has waived the right to be heard as provided in
544 paragraph (b), the court shall promptly enter a final judgment
545 of foreclosure without the need for further hearing if the
546 plaintiff has shown entitlement to a final judgment. If the
547 court finds that a the defendant has not waived the right to be
548 heard on the order to show cause, the court shall then determine
549 whether there is cause not to enter a final judgment of
550 foreclosure. If the court determines, based upon clear and
551 convincing evidence and the arguments presented, to support
552 entry of a final judgment of foreclosure, the court shall enter
553 a final judgment of foreclosure ordering the clerk of the court
554 to conduct a foreclosure sale finds that the defendant has not
555 shown cause, the court shall promptly enter a judgment of
556 foreclosure. If the time allotted for the hearing is
557 insufficient, the court may announce at the hearing a date and
558 time for the continued hearing. Only the parties who appear,
559 individually or through an attorney, at the initial hearing must
560 be notifed of the date and time of the continued hearing.
561 (2) This subsection does not apply to foreclosure of an
562 owner-occupied residence. As part of any other In an action for
563 foreclosure, and in addition to any other relief that the court
564 may award other than residential real estate, the plaintiff the
565 mortgagee may request that the court enter an order directing
566 the mortgagor defendant to show cause why an order to make
567 payments during the pendency of the foreclosure proceedings or
568 an order to vacate the premises should not be entered.
569 (a) The order shall:
570 1. Set the date and time for hearing on the order to show
571 cause. However, the date for the hearing may shall not be set
572 sooner than 20 days after the service of the order. If Where
573 service is obtained by publication, the date for the hearing may
574 shall not be set sooner than 30 days after the first
575 publication.
576 2. Direct the time within which service of the order to
577 show cause and the complaint shall be made upon each the
578 defendant.
579 3. State that a the defendant has the right to file
580 affidavits or other papers at the time of the hearing and may
581 appear personally or by way of an attorney at the hearing.
582 4. State that, if a the defendant fails to appear at the
583 hearing to show cause and fails to file defenses by a motion or
584 by a verified or sworn answer, the defendant is may be deemed to
585 have waived the right to a hearing and in such case the court
586 may enter an order to make payment or vacate the premises.
587 5. Require the movant mortgagee to serve a copy of the
588 order to show cause on the defendant mortgagor in the following
589 manner:
590 a. If a defendant the mortgagor has been served with the
591 complaint and original process, service of the order may be made
592 in the manner provided in the Florida Rules of Civil Procedure.
593 b. If a defendant the mortgagor has not been served with
594 the complaint and original process, the order to show cause,
595 together with the summons and a copy of the complaint, shall be
596 served on the defendant mortgagor in the same manner as provided
597 by law for original process.
598 (b) The right of a defendant to be heard at the hearing to
599 show cause is waived if the defendant, after being served as
600 provided by law with an order to show cause, engages in conduct
601 that clearly shows that the defendant has relinquished the right
602 to be heard on that order. A The defendant’s failure to file
603 defenses by a motion or by a sworn or verified answer or to
604 appear at the hearing duly scheduled on the order to show cause
605 presumptively constitutes conduct that clearly shows that the
606 defendant has relinquished the right to be heard.
607 (c) If the court finds that a the defendant has waived the
608 right to be heard as provided in paragraph (b), the court may
609 promptly enter an order requiring payment in the amount provided
610 in paragraph (f) or an order to vacate.
611 (d) If the court finds that the mortgagor has not waived
612 the right to be heard on the order to show cause, the court
613 shall, at the hearing on the order to show cause, consider the
614 affidavits and other showings made by the parties appearing and
615 make a determination of the probable validity of the underlying
616 claim alleged against the mortgagor and the mortgagor’s
617 defenses. If the court determines that the plaintiff mortgagee
618 is likely to prevail in the foreclosure action, the court shall
619 enter an order requiring the mortgagor to make the payment
620 described in paragraph (e) to the plaintiff mortgagee and
621 provide for a remedy as described in paragraph (f). However, the
622 order shall be stayed pending final adjudication of the claims
623 of the parties if the mortgagor files with the court a written
624 undertaking executed by a surety approved by the court in an
625 amount equal to the unpaid balance of the lien being foreclosed
626 the mortgage on the property, including all principal, interest,
627 unpaid taxes, and insurance premiums paid by the plaintiff the
628 mortgagee.
629 (e) If In the event the court enters an order requiring the
630 mortgagor to make payments to the plaintiff mortgagee, payments
631 shall be payable at such intervals and in such amounts provided
632 for in the mortgage instrument before acceleration or maturity.
633 The obligation to make payments pursuant to any order entered
634 under this subsection shall commence from the date of the motion
635 filed under this section hereunder. The order shall be served
636 upon the mortgagor no later than 20 days before the date
637 specified for the first payment. The order may permit, but may
638 shall not require, the plaintiff mortgagee to take all
639 appropriate steps to secure the premises during the pendency of
640 the foreclosure action.
641 (f) If In the event the court enters an order requiring
642 payments, the order shall also provide that the plaintiff is
643 mortgagee shall be entitled to possession of the premises upon
644 the failure of the mortgagor to make the payment required in the
645 order unless at the hearing on the order to show cause the court
646 finds good cause to order some other method of enforcement of
647 its order.
648 (g) All amounts paid pursuant to this section shall be
649 credited against the mortgage obligation in accordance with the
650 terms of the loan documents;, provided, however, that any
651 payments made under this section do shall not constitute a cure
652 of any default or a waiver or any other defense to the mortgage
653 foreclosure action.
654 (h) Upon the filing of an affidavit with the clerk that the
655 premises have not been vacated pursuant to the court order, the
656 clerk shall issue to the sheriff a writ for possession which
657 shall be governed by the provisions of s. 83.62.
658 (i) For purposes of this subsection, there is a rebuttable
659 presumption that a residential property for which a homestead
660 exemption for taxation was granted according to the certified
661 rolls of the latest assessment by the county property appraiser,
662 before the filing of the foreclosure action, is an owner
663 occupied residential property.
664 (3) The Supreme Court is requested to amend the Florida
665 Rules of Civil Procedure to provide for expedited foreclosure
666 proceedings in conformity with this section. The Supreme Court
667 is requested to develop and publish forms for use under this
668 section.
669 Section 9. Section 702.11, Florida Statutes, is created to
670 read:
671 702.11 Adequate protections for lost, destroyed, or stolen
672 notes in mortgage foreclosure.—
673 (1) In connection with a mortgage foreclosure, the court
674 may find any of the following as reasonable means of providing
675 adequate protection under s. 673.3019:
676 (a) A written indemnification agreement by a person
677 reasonably believed sufficiently solvent to honor such an
678 obligation;
679 (b) A surety bond;
680 (c) A letter of credit issued by a financial institution;
681 (d) A deposit of cash collateral with the clerk of the
682 court; or
683 (e) Such other security as the court may deem appropriate
684 under the circumstances.
685
686 Any security given shall be on terms and in amounts set by the
687 court, for a time period through the running of the statute of
688 limitations for enforcement of the underlying note, and
689 conditioned to indemnify and hold harmless the maker of the note
690 against any loss or damage, including principal, interest, and
691 attorney fees and costs, which might occur by reason of a claim
692 by another person to enforce the note.
693 (2) Any person who wrongly claimed to be the holder of or,
694 pursuant to s. 673.3011, wrongly claimed to be entitled to
695 enforce a lost, stolen, or destroyed note and caused the
696 mortgage secured by the note to be foreclosed is liable to the
697 actual holder of the note for actual damages suffered, together
698 with attorney fees and costs of the actual holder of the note in
699 enforcing rights under this section. The extent of the liability
700 is not limited to any adequate protections given under s.
701 673.3091. In addition, the actual holder of the note may pursue
702 recovery directly against any adequate protections given.
703 (a) The actual holder of the note is not required to pursue
704 recovery against the maker of the note or any guarantor of the
705 note as a condition precedent to pursuing remedies under this
706 section.
707 (b) This section does not limit or restrict the ability of
708 the actual holder of the note to pursue any other claims or
709 remedies it may have against the maker, the person who wrongly
710 claimed to be the holder, or any person who facilitated or
711 participated in the claim to the note or enforcement of the
712 note.
713 Section 10. Section 702.13, Florida Statutes, is created to
714 read:
715 702.13 Expedited foreclosure of abandoned residential real
716 property.—
717 (1) As used in this section, the term “abandoned
718 residential real property” means residential real property that
719 is deemed abandoned upon a showing that:
720 (a) A duly licensed process server unaffiliated with the
721 owner or servicer of any mortgage on the residential real
722 property or with the attorney or law firm representing such
723 owner or servicer has made at least three attempts to locate an
724 occupant of the residential real property. The attempts must
725 have been made at least 72 hours apart, and at least one each of
726 such attempts must have been made before 12 p.m., between 12
727 p.m. and 6 p.m., and between 6 p.m. and 10 p.m. Each attempt
728 must include physically knocking or ringing at the door of the
729 residential real property and such other efforts as are normally
730 sufficient to obtain a response from an occupant.
731 (b) Two or more of the following conditions exist:
732 1. Windows or entrances to the premises are boarded up or
733 closed off or multiple window panes are broken and unrepaired.
734 2. Doors to the premises are smashed through, broken off,
735 unhinged, or continuously unlocked.
736 3. Rubbish, trash, or debris has accumulated on the
737 mortgaged premises.
738 4. The premises are deteriorating and are below or in
739 imminent danger of falling below minimum community standards for
740 public safety and sanitation.
741 5. If the premises are a part of a condominium or are
742 governed by a mandatory homeowners’ association, the manager or
743 other representative of the association has confirmed that
744 assessments for the unit are at least 90 days delinquent.
745 6. Interviews with at least two neighbors in different
746 households indicate that the residence has been abandoned. The
747 neighbors must be adjoining, across the street in view of the
748 home, or across the hall or adjacent to the unit in a
749 condominium or cooperative.
750
751 The process server making attempts to locate an occupant of the
752 residential real property may provide, by affidavit and
753 photographic or other documentation, evidence of the condition
754 of the residential real property.
755 (2)(a) The party entitled to enforce the note and mortgage
756 encumbering the residential real property appearing to be
757 abandoned must file a petition before the court seeking to
758 determine the status of the residential real property and to
759 invoke an expedited foreclosure proceeding relating to the
760 property. Upon the filing of an affidavit of diligent search and
761 inquiry and the affidavit or documentary evidence set forth in
762 subsection (1), the court shall, upon request of the petitioner,
763 issue one or more subpoenas to the utility companies serving the
764 residential real property commanding disclosure of the status of
765 utility service to the subject property, including whether
766 utilities are currently turned off and whether all outstanding
767 utility payments have been made and, if so, by whom.
768 (b) If, after review of the response of the utility
769 companies to the subpoenas and all other matters of record, the
770 court determines the property to have been abandoned, the party
771 entitled to foreclose on interest encumbering the residential
772 real property is entitled to use the expedited mortgage
773 foreclosure procedures set forth in s. 702.10 upon service by
774 publication. However, service must be made on any condominium,
775 cooperative, or homeowners’ association having a lien interest
776 in the property and all other junior lienholders as required by
777 law.
778 Section 11. This act is intended to be remedial in nature
779 and applies to any action filed on or after the effective date
780 of this act. The failure to strictly comply with the
781 requirements of this act may be asserted only within the
782 foreclosure proceeding itself and does not affect the validity
783 of any final judgment of foreclosure which may be granted or
784 give rise to any independent cause of action or claim for
785 damages against the plaintiff or any other party.
786 Section 12. This act shall take effect upon becoming a law.