Florida Senate - 2012 COMMITTEE AMENDMENT
Bill No. CS for SB 680
Barcode 294568
LEGISLATIVE ACTION
Senate . House
Comm: WD .
02/22/2012 .
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The Committee on Judiciary (Thrasher) recommended the following:
1 Senate Amendment (with title amendment)
2
3 Between lines 147 and 148
4 insert:
5 Section 3. 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 be set sooner
29 than 20 days after the service of the order. When service is
30 obtained by publication, the date for the hearing may not be set
31 sooner than 30 days after the first publication. The hearing
32 must be held within 90 60 days after the date of service.
33 Failure to hold the hearing within such time does not affect the
34 validity of the order to show cause or the jurisdiction of the
35 court to issue subsequent orders.
36 2. Direct the time within which service of the order to
37 show cause and the complaint must be made upon the defendant.
38 3. State that the filing of defenses by a motion,
39 responsive pleading, affidavits, or other papers or by a
40 verified or sworn answer at or before the hearing to show cause
41 may constitute constitutes cause for the court not to enter a
42 the attached final judgment.
43 4. State that a the defendant has the right to file
44 affidavits or other papers before at the time of the hearing to
45 show cause and may appear personally or by way of an attorney at
46 the hearing.
47 5. State that, if a the defendant files defenses by a
48 motion, a verified or sworn answer, affidavits, or other papers
49 or appears personally or by way of an attorney at the time of
50 the hearing, the hearing time shall may be used to hear and
51 consider the defendant’s motion, answer, affidavits, other
52 papers, and other evidence and argument as may be presented by
53 the defendant or the defendant’s attorney. The court may then
54 determine, based upon clear and convincing evidence and the
55 arguments presented, to support entry of a final judgment of
56 foreclosure, and if so, enter a final judgment of foreclosure
57 ordering the clerk of the court to conduct a foreclosure sale.
58 6. State that, if a the defendant fails to appear at the
59 hearing to show cause or fails to file defenses by a motion or
60 by a verified or sworn answer or files an answer not contesting
61 the foreclosure, such the defendant may be considered to have
62 waived the right to a hearing. and In such case, the court may
63 enter a default against such defendant and, if appropriate, a
64 final judgment of foreclosure ordering the clerk of the court to
65 conduct a foreclosure sale.
66 7. State that if the mortgage provides for reasonable
67 attorney attorney’s fees and the requested attorney attorney’s
68 fees do not exceed 3 percent of the principal amount owed at the
69 time of filing the complaint, it is unnecessary for the court to
70 hold a hearing or adjudge the requested attorney attorney’s fees
71 to be reasonable.
72 8. Attach the form of the proposed final judgment of
73 foreclosure which the movant requests the court to will enter,
74 if the defendant waives the right to be heard at the hearing on
75 the order to show cause. The form may contain blanks for the
76 court to enter the amounts due.
77 9. Require the party seeking final judgment mortgagee to
78 serve a copy of the order to show cause on the other parties the
79 mortgagor in the following manner:
80 a. If a party the mortgagor has been served with the
81 complaint and original process, or the other party is the
82 plaintiff in the action, service of the order to show cause on
83 that party order may be made in the manner provided in the
84 Florida Rules of Civil Procedure.
85 b. If a defendant the mortgagor has not been served with
86 the complaint and original process, the order to show cause,
87 together with the summons and a copy of the complaint, shall be
88 served on the party mortgagor in the same manner as provided by
89 law for original process.
90
91 A Any final judgment of foreclosure entered under this
92 subsection is for in rem relief only. Nothing in This subsection
93 does not shall preclude the entry of a deficiency judgment where
94 otherwise allowed by law. It is the intent of the Legislature
95 that this alternative procedure may run simultaneously with
96 other court procedures.
97 (b) The right to be heard at the hearing to show cause is
98 waived if a the defendant, after being served as provided by law
99 with an order to show cause, engages in conduct that clearly
100 shows that the defendant has relinquished the right to be heard
101 on that order. The defendant’s failure to file defenses by a
102 motion or by a sworn or verified answer, affidavits, or other
103 papers or to appear personally or by way of an attorney at the
104 hearing duly scheduled on the order to show cause presumptively
105 constitutes conduct that clearly shows that the defendant has
106 relinquished the right to be heard. If a defendant files
107 defenses by a motion, or by a verified or sworn answer,
108 affidavits, or other papers at or before the hearing, such
109 action may constitute constitutes cause and may preclude
110 precludes the entry of a final judgment at the hearing to show
111 cause.
112 (c) In a mortgage foreclosure proceeding, if when a final
113 default judgment of foreclosure has been entered against the
114 mortgagor and the note or mortgage provides for the award of
115 reasonable attorney attorney’s fees, it is unnecessary for the
116 court to hold a hearing or adjudge the requested attorney
117 attorney’s fees to be reasonable if the fees do not exceed 3
118 percent of the principal amount owed on the note or mortgage at
119 the time of filing, even if the note or mortgage does not
120 specify the percentage of the original amount that would be paid
121 as liquidated damages.
122 (d) If the court finds that all defendants have the
123 defendant has waived the right to be heard as provided in
124 paragraph (b), the court shall promptly enter a final judgment
125 of foreclosure without the need for further hearing if the
126 plaintiff has shown entitlement to a final judgment. If the
127 court finds that a the defendant has not waived the right to be
128 heard on the order to show cause, the court shall then determine
129 whether there is cause not to enter a final judgment of
130 foreclosure. If the court determines, based upon clear and
131 convincing evidence and the arguments presented, to support
132 entry of a final judgment of foreclosure, the court shall enter
133 a final judgment of foreclosure ordering the clerk of the court
134 to conduct a foreclosure sale finds that the defendant has not
135 shown cause, the court shall promptly enter a judgment of
136 foreclosure. If the time allotted for the hearing is
137 insufficient, the court may announce at the hearing a date and
138 time for the continued hearing. Only the parties who appear,
139 individually or through an attorney, at the initial hearing must
140 be notifed of the date and time of the continued hearing.
141 (2) This subsection does not apply to foreclosure of an
142 owner-occupied residence. As part of any other In an action for
143 foreclosure, and in addition to any other relief that the court
144 may award other than residential real estate, the plaintiff the
145 mortgagee may request that the court to enter an order directing
146 the mortgagor defendant to show cause why an order to make
147 payments during the pendency of the foreclosure proceedings or
148 an order to vacate the premises should not be entered.
149 (a) The order shall:
150 1. Set the date and time for hearing on the order to show
151 cause. However, the date for the hearing may shall not be set
152 sooner than 20 days after the service of the order. If Where
153 service is obtained by publication, the date for the hearing may
154 shall not be set sooner than 30 days after the first
155 publication.
156 2. Direct the time within which service of the order to
157 show cause and the complaint shall be made upon each the
158 defendant.
159 3. State that a the defendant has the right to file
160 affidavits or other papers at the time of the hearing and may
161 appear personally or by way of an attorney at the hearing.
162 4. State that, if a the defendant fails to appear at the
163 hearing to show cause and fails to file defenses by a motion or
164 by a verified or sworn answer, the defendant is may be deemed to
165 have waived the right to a hearing and in such case the court
166 may enter an order to make payment or vacate the premises.
167 5. Require the movant mortgagee to serve a copy of the
168 order to show cause on the defendant mortgagor in the following
169 manner:
170 a. If a defendant the mortgagor has been served with the
171 complaint and original process, service of the order may be made
172 in the manner provided in the Florida Rules of Civil Procedure.
173 b. If a defendant the mortgagor has not been served with
174 the complaint and original process, the order to show cause,
175 together with the summons and a copy of the complaint, shall be
176 served on the defendant mortgagor in the same manner as provided
177 by law for original process.
178 (b) The right of a defendant to be heard at the hearing to
179 show cause is waived if the defendant, after being served as
180 provided by law with an order to show cause, engages in conduct
181 that clearly shows that the defendant has relinquished the right
182 to be heard on that order. A The defendant’s failure to file
183 defenses by a motion or by a sworn or verified answer or to
184 appear at the hearing duly scheduled on the order to show cause
185 presumptively constitutes conduct that clearly shows that the
186 defendant has relinquished the right to be heard.
187 (c) If the court finds that a the defendant has waived the
188 right to be heard as provided in paragraph (b), the court may
189 promptly enter an order requiring payment in the amount provided
190 in paragraph (f) or an order to vacate.
191 (d) If the court finds that the mortgagor has not waived
192 the right to be heard on the order to show cause, the court
193 shall, at the hearing on the order to show cause, consider the
194 affidavits and other showings made by the parties appearing and
195 make a determination of the probable validity of the underlying
196 claim alleged against the mortgagor and the mortgagor’s
197 defenses. If the court determines that the plaintiff mortgagee
198 is likely to prevail in the foreclosure action, the court shall
199 enter an order requiring the mortgagor to make the payment
200 described in paragraph (e) to the plaintiff mortgagee and
201 provide for a remedy as described in paragraph (f). However, the
202 order shall be stayed pending final adjudication of the claims
203 of the parties if the mortgagor files with the court a written
204 undertaking executed by a surety approved by the court in an
205 amount equal to the unpaid balance of the lien being foreclosed
206 the mortgage on the property, including all principal, interest,
207 unpaid taxes, and insurance premiums paid by the plaintiff the
208 mortgagee.
209 (e) If In the event the court enters an order requiring the
210 mortgagor to make payments to the plaintiff mortgagee, payments
211 shall be payable at such intervals and in such amounts provided
212 for in the mortgage instrument before acceleration or maturity.
213 The obligation to make payments pursuant to any order entered
214 under this subsection shall commence from the date of the motion
215 filed under this section hereunder. The order shall be served
216 upon the mortgagor no later than 20 days before the date
217 specified for the first payment. The order may permit, but may
218 shall not require, the plaintiff mortgagee to take all
219 appropriate steps to secure the premises during the pendency of
220 the foreclosure action.
221 (f) If In the event the court enters an order requiring
222 payments, the order must shall also provide that the plaintiff
223 is mortgagee shall be entitled to possession of the premises
224 upon the failure of the mortgagor to make the payment required
225 in the order unless at the hearing on the order to show cause
226 the court finds good cause to order some other method of
227 enforcement of its order.
228 (g) All amounts paid pursuant to this section shall be
229 credited against the mortgage obligation in accordance with the
230 terms of the loan documents;, provided, however, that any
231 payments made under this section do shall not constitute a cure
232 of any default or a waiver or any other defense to the mortgage
233 foreclosure action.
234 (h) Upon the filing of an affidavit with the clerk that the
235 premises have not been vacated pursuant to the court order, the
236 clerk shall issue to the sheriff a writ for possession, which is
237 shall be governed by the provisions of s. 83.62.
238 (i) For purposes of this subsection, there is a rebuttable
239 presumption that a residential property for which a homestead
240 exemption for taxation was granted according to the certified
241 rolls of the latest assessment by the county property appraiser,
242 before the filing of the foreclosure action, is an owner
243 occupied residential property.
244 (3) The Supreme Court is requested to amend the Florida
245 Rules of Civil Procedure to provide for expedited foreclosure
246 proceedings in conformity with this section and to develop and
247 publish forms for use under this section.
248
249 ================= T I T L E A M E N D M E N T ================
250 And the title is amended as follows:
251 Delete line 9
252 and insert:
253 records request; amending s. 702.10, F.S.; expanding
254 the class of persons authorized to move for expedited
255 foreclosure; defining the term “lienholder”; providing
256 requirements and procedures with respect to an order
257 directed to defendants to show cause why a final
258 judgment of foreclosure should not be entered;
259 providing that certain failures by a defendant to make
260 certain filings or to make certain appearances may
261 have specified legal consequences; requiring the court
262 to enter a final judgment of foreclosure and order a
263 foreclosure sale under certain circumstances; amending
264 a restriction on a mortgagee to request a court to
265 order a mortgagor defendant to make payments or to
266 vacate the premises during an action to foreclose on
267 residential real estate to provide that the
268 restriction applies to all but owner-occupied
269 residential property; providing a presumption
270 regarding owner-occupied residential property;
271 requesting the Supreme Court to adopt rules and forms
272 for use in expedited foreclosure proceedings; amending
273 s. 718.112, F.S.; revising