Florida Senate - 2013                        COMMITTEE AMENDMENT
       Bill No. CS for SB 1666
                                Barcode 768302                          
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                   Comm: WD            .                                
                  04/15/2013           .                                

       The Committee on Judiciary (Soto) recommended the following:
    1         Senate Amendment (with title amendment)
    3         Delete lines 987 - 1090
    4  and insert:
    5         (2) As part of any In an action for foreclosure, other than
    6  residential real estate, and in addition to any other relief
    7  that the court may award, the plaintiff the mortgagee may
    8  request that the court enter an order directing the mortgagor
    9  defendant to show cause why an order to make payments during the
   10  pendency of the foreclosure proceedings or an order to vacate
   11  the premises should not be entered.
   12         (a) The order shall:
   13         1. Set the date and time for hearing on the order to show
   14  cause. However, the date for the hearing may shall not be set
   15  sooner than 20 days after the service of the order. If Where
   16  service is obtained by publication, the date for the hearing may
   17  shall not be set sooner than 30 days after the first
   18  publication.
   19         2. Direct the time within which service of the order to
   20  show cause and the complaint shall be made upon each the
   21  defendant.
   22         3. State that a the defendant has the right to file
   23  affidavits or other papers at the time of the hearing and may
   24  appear personally or by way of an attorney at the hearing.
   25         4. State that, if a the defendant fails to appear at the
   26  hearing to show cause and fails to file defenses by a motion or
   27  by a verified or sworn answer, the defendant is may be deemed to
   28  have waived the right to a hearing and in such case the court
   29  may enter an order to make payment or vacate the premises.
   30         5. Require the movant mortgagee to serve a copy of the
   31  order to show cause on the defendant mortgagor in the following
   32  manner:
   33         a. If a defendant the mortgagor has been served with the
   34  complaint and original process, service of the order may be made
   35  in the manner provided in the Florida Rules of Civil Procedure.
   36         b. If a defendant the mortgagor has not been served with
   37  the complaint and original process, the order to show cause,
   38  together with the summons and a copy of the complaint, shall be
   39  served on the defendant mortgagor in the same manner as provided
   40  by law for original process.
   41         (b) The right of a defendant to be heard at the hearing to
   42  show cause is waived if the defendant, after being served as
   43  provided by law with an order to show cause, engages in conduct
   44  that clearly shows that the defendant has relinquished the right
   45  to be heard on that order. A The defendant’s failure to file
   46  defenses by a motion or by a sworn or verified answer or to
   47  appear at the hearing duly scheduled on the order to show cause
   48  presumptively constitutes conduct that clearly shows that the
   49  defendant has relinquished the right to be heard.
   50         (c) If the court finds that a the defendant has waived the
   51  right to be heard as provided in paragraph (b), the court may
   52  promptly enter an order requiring payment in the amount provided
   53  in paragraph (f) or an order to vacate.
   54         (d) If the court finds that the mortgagor has not waived
   55  the right to be heard on the order to show cause, the court
   56  shall, at the hearing on the order to show cause, consider the
   57  affidavits and other showings made by the parties appearing and
   58  make a determination of the probable validity of the underlying
   59  claim alleged against the mortgagor and the mortgagor’s
   60  defenses. If the court determines that the plaintiff mortgagee
   61  is likely to prevail in the foreclosure action, the court shall
   62  enter an order requiring the mortgagor to make the payment
   63  described in paragraph (e) to the plaintiff mortgagee and
   64  provide for a remedy as described in paragraph (f). However, the
   65  order shall be stayed pending final adjudication of the claims
   66  of the parties if the mortgagor files with the court a written
   67  undertaking executed by a surety approved by the court in an
   68  amount equal to the unpaid balance of the lien being foreclosed
   69  the mortgage on the property, including all principal, interest,
   70  unpaid taxes, and insurance premiums paid by the plaintiff the
   71  mortgagee.
   72         (e) If In the event the court enters an order requiring the
   73  mortgagor to make payments to the plaintiff mortgagee, payments
   74  shall be payable at such intervals and in such amounts provided
   75  for in the mortgage instrument before acceleration or maturity.
   76  The obligation to make payments pursuant to any order entered
   77  under this subsection shall commence from the date of the motion
   78  filed under this section hereunder. The order shall be served
   79  upon the mortgagor no later than 20 days before the date
   80  specified for the first payment. The order may allow permit, but
   81  may shall not require, the plaintiff mortgagee to take all
   82  appropriate steps to secure the premises during the pendency of
   83  the foreclosure action.
   84         (f) If In the event the court enters an order requiring
   85  payments, the order shall also provide that the plaintiff is
   86  mortgagee shall be entitled to possession of the premises upon
   87  the failure of the mortgagor to make the payment required in the
   88  order unless at the hearing on the order to show cause the court
   89  finds good cause to order some other method of enforcement of
   90  its order.
   91         (g) All amounts paid pursuant to this section shall be
   92  credited against the mortgage obligation in accordance with the
   93  terms of the loan documents;, provided, however, that any
   94  payments made under this section do shall not constitute a cure
   95  of any default or a waiver or any other defense to the mortgage
   96  foreclosure action.
   97         (h) Upon the filing of an affidavit with the clerk that the
   98  premises have not been vacated pursuant to the court order, the
   99  clerk shall issue to the sheriff a writ for possession which
  100  shall be governed by the provisions of s. 83.62.
  102  ================= T I T L E  A M E N D M E N T ================
  103         And the title is amended as follows:
  104         Delete lines 79 - 85
  105  and insert:
  106         circumstances;