Florida Senate - 2012 SENATOR AMENDMENT
Bill No. CS for SB 670
Barcode 806394
LEGISLATIVE ACTION
Senate . House
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Senators Richter, Gaetz, and Ring moved the following:
1 Senate Amendment (with title amendment)
2
3 Between lines 27 and 28
4 insert:
5 Section 2. Section 702.10, Florida Statutes, is amended to
6 read:
7 702.10 Order to show cause; entry of final judgment of
8 foreclosure; payment during foreclosure.—
9 (1) A lienholder After a complaint in a foreclosure
10 proceeding has been filed, the mortgagee may request an order to
11 show cause for the entry of final judgment in a foreclosure
12 action. For purposes of this section, the term “lienholder”
13 includes the plaintiff and a defendant to the action who holds a
14 lien encumbering the property or a defendant who, by virtue of
15 its status as a condominium association, cooperative
16 association, or homeowners’ association, may file a lien against
17 the real property subject to foreclosure. Upon filing, and the
18 court shall immediately review the request and the court file in
19 chambers and without a hearing complaint. If, upon examination
20 of the court file complaint, the court finds that the complaint
21 is verified, complies with s. 702.015, and alleges a cause of
22 action to foreclose on real property, the court shall promptly
23 issue an order directed to the other parties named in the action
24 defendant to show cause why a final judgment of foreclosure
25 should not be entered.
26 (a) The order shall:
27 1. Set the date and time for a hearing on the order to show
28 cause. However, The date for the hearing may not occur be set
29 sooner than the later of 20 days after the service of the order
30 to show cause or 45 days after the service of the initial
31 complaint. When service is obtained by publication, the date for
32 the hearing may not be set sooner than 55 30 days after the
33 first publication. The hearing must be held within 60 days after
34 the date of service. Failure to hold the hearing within such
35 time does not affect the validity of the order to show cause or
36 the jurisdiction of the court to issue subsequent orders.
37 2. Direct the time within which service of the order to
38 show cause and the complaint must be made upon the defendant.
39 3. State that the filing of defenses by a motion,
40 responsive pleading, affidavits, or other papers or by a
41 verified or sworn answer at or before the hearing to show cause
42 may constitute constitutes cause for the court not to enter the
43 attached final judgment.
44 4. State that a the defendant has the right to file
45 affidavits or other papers before at the time of the hearing to
46 show cause and may appear personally or by way of an attorney at
47 the hearing.
48 5. State that, if a the defendant files defenses by a
49 motion, a verified or sworn answer, affidavits, or other papers
50 or appears personally or by way of an attorney at the time of
51 the hearing, the hearing time will may be used to hear and
52 consider the defendant’s motion, answer, affidavits, other
53 papers, and other evidence and argument as may be presented by
54 the defendant or the defendant’s attorney. The order shall also
55 state that the court may enter an order of final judgment of
56 foreclosure at the hearing. If such a determination is entered,
57 the court shall enter a final judgment of foreclosure ordering
58 the clerk of the court to conduct a foreclosure sale.
59 6. State that, if a the defendant fails to appear at the
60 hearing to show cause or fails to file defenses by a motion or
61 by a verified or sworn answer or files an answer not contesting
62 the foreclosure, such the defendant may be considered to have
63 waived the right to a hearing, and in such case, the court may
64 enter a default against such defendant and, if appropriate, a
65 final judgment of foreclosure ordering the clerk of the court to
66 conduct a foreclosure sale.
67 7. State that if the mortgage provides for reasonable
68 attorney attorney’s fees and the requested attorney attorney’s
69 fees do not exceed 3 percent of the principal amount owed at the
70 time of filing the complaint, it is unnecessary for the court to
71 hold a hearing or adjudge the requested attorney attorney’s fees
72 to be reasonable.
73 8. Attach the form of the proposed final judgment of
74 foreclosure which the movant requests the court to will enter,
75 if the defendant waives the right to be heard at the hearing on
76 the order to show cause. The form may contain blanks for the
77 court to enter the amounts due.
78 9. Require the party seeking final judgment mortgagee to
79 serve a copy of the order to show cause on the other parties the
80 mortgagor in the following manner:
81 a. If a party the mortgagor has been personally served with
82 the complaint and original process, or the other party is the
83 plaintiff in the action, service of the order to show cause on
84 that party order may be made in the manner provided in the
85 Florida Rules of Civil Procedure.
86 b. If a defendant the mortgagor has not been personally
87 served with the complaint and original process, the order to
88 show cause, together with the summons and a copy of the
89 complaint, shall be served on the party mortgagor in the same
90 manner as provided by law for original process. Service of the
91 complaint and original process by mail or publication is not
92 personal service for purposes of this subparagraph.
93
94 Any final judgment of foreclosure entered under this subsection
95 is for in rem relief only. Nothing in This subsection does not
96 shall preclude the entry of a deficiency judgment where
97 otherwise allowed by law. It is the intent of the Legislature
98 that this alternative procedure may run simultaneously with
99 other court procedures.
100 (b) The right to be heard at the hearing to show cause is
101 waived if a the defendant, after being served as provided by law
102 with an order to show cause, engages in conduct that clearly
103 shows that the defendant has relinquished the right to be heard
104 on that order. The defendant’s failure to file defenses by a
105 motion or by a sworn or verified answer, affidavits, or other
106 papers or to appear personally or by way of an attorney at the
107 hearing duly scheduled on the order to show cause presumptively
108 constitutes conduct that clearly shows that the defendant has
109 relinquished the right to be heard. If a defendant files
110 defenses by a motion, or by a verified or sworn answer,
111 affidavits, or other papers at or before the hearing, such
112 action may constitute constitutes cause and may preclude
113 precludes the entry of a final judgment at the hearing to show
114 cause.
115 (c) In a mortgage foreclosure proceeding, when a final
116 default judgment of foreclosure has been entered against the
117 mortgagor and the note or mortgage provides for the award of
118 reasonable attorney attorney’s fees, it is unnecessary for the
119 court to hold a hearing or adjudge the requested attorney
120 attorney’s fees to be reasonable if the fees do not exceed 3
121 percent of the principal amount owed on the note or mortgage at
122 the time of filing, even if the note or mortgage does not
123 specify the percentage of the original amount that would be paid
124 as liquidated damages.
125 (d) If the court finds that all defendants have the
126 defendant has waived the right to be heard as provided in
127 paragraph (b), the court shall promptly enter a final judgment
128 of foreclosure without the need for further hearing if the
129 plaintiff has shown entitlement to a final judgment and upon the
130 filing with the court of the original note, satisfaction of the
131 conditions for establishment of a lost note, or upon a showing
132 to the court that the obligation to be foreclosed is not
133 evidenced by a promissory note or other negotiable instrument.
134 If the court finds that a the defendant has not waived the right
135 to be heard on the order to show cause, the court shall then
136 determine whether there is cause not to enter a final judgment
137 of foreclosure. If the court finds that the defendant has not
138 shown cause, the court shall promptly enter a judgment of
139 foreclosure. If the time allotted for the hearing is
140 insufficient, the court may announce at the hearing a date and
141 time for the continued hearing. Only the parties who appear,
142 individually or through an attorney, at the initial hearing must
143 be notified of the date and time of the continued hearing.
144 (2) This subsection does not apply to foreclosure of an
145 owner-occupied residence. As part of any other In an action for
146 foreclosure, and in addition to any other relief that the court
147 may award other than residential real estate, the plaintiff the
148 mortgagee may request that the court enter an order directing
149 the mortgagor defendant to show cause why an order to make
150 payments during the pendency of the foreclosure proceedings or
151 an order to vacate the premises should not be entered.
152 (a) The order shall:
153 1. Set the date and time for hearing on the order to show
154 cause. However, the date for the hearing may shall not be set
155 sooner than 20 days after the service of the order. If Where
156 service is obtained by publication, the date for the hearing may
157 shall not be set sooner than 30 days after the first
158 publication.
159 2. Direct the time within which service of the order to
160 show cause and the complaint shall be made upon each the
161 defendant.
162 3. State that a the defendant has the right to file
163 affidavits or other papers at the time of the hearing and may
164 appear personally or by way of an attorney at the hearing.
165 4. State that, if a the defendant fails to appear at the
166 hearing to show cause and fails to file defenses by a motion or
167 by a verified or sworn answer, the defendant is may be deemed to
168 have waived the right to a hearing and in such case the court
169 may enter an order to make payment or vacate the premises.
170 5. Require the movant mortgagee to serve a copy of the
171 order to show cause on the defendant mortgagor in the following
172 manner:
173 a. If a defendant the mortgagor has been served with the
174 complaint and original process, service of the order may be made
175 in the manner provided in the Florida Rules of Civil Procedure.
176 b. If a defendant the mortgagor has not been served with
177 the complaint and original process, the order to show cause,
178 together with the summons and a copy of the complaint, shall be
179 served on the defendant mortgagor in the same manner as provided
180 by law for original process.
181 (b) The right of a defendant to be heard at the hearing to
182 show cause is waived if the defendant, after being served as
183 provided by law with an order to show cause, engages in conduct
184 that clearly shows that the defendant has relinquished the right
185 to be heard on that order. A The defendant’s failure to file
186 defenses by a motion or by a sworn or verified answer or to
187 appear at the hearing duly scheduled on the order to show cause
188 presumptively constitutes conduct that clearly shows that the
189 defendant has relinquished the right to be heard.
190 (c) If the court finds that a the defendant has waived the
191 right to be heard as provided in paragraph (b), the court may
192 promptly enter an order requiring payment in the amount provided
193 in paragraph (f) or an order to vacate.
194 (d) If the court finds that the mortgagor has not waived
195 the right to be heard on the order to show cause, the court
196 shall, at the hearing on the order to show cause, consider the
197 affidavits and other showings made by the parties appearing and
198 make a determination of the probable validity of the underlying
199 claim alleged against the mortgagor and the mortgagor’s
200 defenses. If the court determines that the plaintiff mortgagee
201 is likely to prevail in the foreclosure action, the court shall
202 enter an order requiring the mortgagor to make the payment
203 described in paragraph (e) to the plaintiff mortgagee and
204 provide for a remedy as described in paragraph (f). However, the
205 order shall be stayed pending final adjudication of the claims
206 of the parties if the mortgagor files with the court a written
207 undertaking executed by a surety approved by the court in an
208 amount equal to the unpaid balance of the lien being foreclosed
209 the mortgage on the property, including all principal, interest,
210 unpaid taxes, and insurance premiums paid by the plaintiff the
211 mortgagee.
212 (e) If In the event the court enters an order requiring the
213 mortgagor to make payments to the plaintiff mortgagee, payments
214 shall be payable at such intervals and in such amounts provided
215 for in the mortgage instrument before acceleration or maturity.
216 The obligation to make payments pursuant to any order entered
217 under this subsection shall commence from the date of the motion
218 filed under this section hereunder. The order shall be served
219 upon the mortgagor no later than 20 days before the date
220 specified for the first payment. The order may permit, but may
221 shall not require, the plaintiff mortgagee to take all
222 appropriate steps to secure the premises during the pendency of
223 the foreclosure action.
224 (f) If In the event the court enters an order requiring
225 payments, the order shall also provide that the plaintiff is
226 mortgagee shall be entitled to possession of the premises upon
227 the failure of the mortgagor to make the payment required in the
228 order unless at the hearing on the order to show cause the court
229 finds good cause to order some other method of enforcement of
230 its order.
231 (g) All amounts paid pursuant to this section shall be
232 credited against the mortgage obligation in accordance with the
233 terms of the loan documents;, provided, however, that any
234 payments made under this section do shall not constitute a cure
235 of any default or a waiver or any other defense to the mortgage
236 foreclosure action.
237 (h) Upon the filing of an affidavit with the clerk that the
238 premises have not been vacated pursuant to the court order, the
239 clerk shall issue to the sheriff a writ for possession which
240 shall be governed by the provisions of s. 83.62.
241 (i) For purposes of this subsection, there is a rebuttable
242 presumption that a residential property for which a homestead
243 exemption for taxation was granted according to the certified
244 rolls of the latest assessment by the county property appraiser,
245 before the filing of the foreclosure action, is an owner
246 occupied residential property.
247 (3) The Supreme Court is requested to amend the Florida
248 Rules of Civil Procedure to provide for expedited foreclosure
249 proceedings in conformity with this section and is requested to
250 develop and publish forms for use under this section.
251
252 ================= T I T L E A M E N D M E N T ================
253 And the title is amended as follows:
254 Delete line 10
255 and insert:
256 notice of lien; amending s. 702.10, F.S.; expanding
257 the class of persons authorized to move for expedited
258 foreclosure; defining the term “lienholder”; providing
259 requirements and procedures with respect to an order
260 directed to defendants to show cause why a final
261 judgment of foreclosure should not be entered;
262 providing that certain failures by a defendant to make
263 certain filings or to make certain appearances may
264 have specified legal consequences; requiring the court
265 to enter a final judgment of foreclosure and order a
266 foreclosure sale under certain circumstances; revising
267 a restriction on a mortgagee to request a court to
268 order a mortgagor defendant to make payments or to
269 vacate the premises during an action to foreclose on
270 residential real estate to provide that the
271 restriction applies to all but owner-occupied
272 residential property; providing a presumption
273 regarding owner-occupied residential property;
274 requesting the Supreme Court to adopt rules and forms
275 for use in expedited foreclosure proceedings;
276 providing an effective date.