Florida Senate - 2023                        COMMITTEE AMENDMENT
       Bill No. SB 286
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/08/2023           .                                

       The Committee on Banking and Insurance (Powell) recommended the
    1         Senate Amendment (with title amendment)
    3         Delete lines 28 - 255
    4  and insert:
    5  whose electronic signature is affixed to an electronic record to
    6  attest or subscribe to a principal’s signature on such record.
    7         Section 2. Present subsections (1) through (8) of section
    8  697.07, Florida Statutes, are redesignated as subsections (2)
    9  through (9), respectively, present subsections (2), (3), and (4)
   10  of that section are amended, and a new subsection (1) and
   11  subsection (10) are added to that section, to read:
   12         697.07 Assignment of rents.—
   13         (1)For purposes of this section, the term:
   14         (a)“Mortgagee” means a person entitled to enforce an
   15  obligation secured by a mortgage.
   16         (b)“Mortgagor” means a person who grants a mortgage or a
   17  successor in ownership of the real property described in the
   18  mortgage.
   19         (3)(2) If such an assignment is made, the mortgagee shall
   20  hold a lien on the rents, and the lien created by the assignment
   21  shall be perfected and effective against the mortgagor and third
   22  parties upon recordation of the mortgage or separate instrument
   23  in the public records of the county in which the real property
   24  is located, according to law.
   25         (4)(3) Unless otherwise agreed to in writing by the
   26  mortgagee and mortgagor, the lien created by the assignment of
   27  rents is shall be enforceable upon the mortgagor’s default and
   28  written demand for the rents made by the mortgagee to the
   29  mortgagor, whereupon the mortgagor shall turn over all rents in
   30  the possession or control of the mortgagor at the time of the
   31  written demand or collected thereafter (the “collected rents”)
   32  to the mortgagee less payment of any expenses authorized by the
   33  mortgagee in writing.
   34         (5)(4) Upon application by the mortgagee or mortgagor, in a
   35  foreclosure action, and notwithstanding any asserted defenses or
   36  counterclaims of the mortgagor, a court of competent
   37  jurisdiction, pending final adjudication of any action, may
   38  require the mortgagor to deposit the collected rents into the
   39  registry of the court, or in such other depository as the court
   40  may designate. However, the court may authorize the use of the
   41  collected rents, before deposit into the registry of the court
   42  or other depository, to:
   43         (a) Pay the reasonable expenses solely to protect,
   44  preserve, and operate the real property, including, without
   45  limitation, real estate taxes, and insurance, and assessments
   46  that become due after the entry of the court’s order to a
   47  homeowners’ association or an association, as those terms are
   48  defined in s. 720.301, or a corporation regulated under chapter
   49  718 or chapter 719;
   50         (b) Escrow sums required by the mortgagee or separate
   51  assignment of rents instrument; and
   52         (c) Make payments to the mortgagee.
   54  The court shall require the mortgagor to account to the court
   55  and the mortgagee for the receipt and use of the collected rents
   56  and may also impose other conditions on the mortgagor’s use of
   57  the collected rents.
   58         (10)This section does not apply to a corporation that is a
   59  homeowners’ association or an association, as those terms are
   60  defined in s. 720.301, or a corporation regulated under chapter
   61  718 or chapter 719, that:
   62         (a)Acquires title to a parcel or unit through the
   63  foreclosure of its claim of lien, or a deed in lieu of
   64  foreclosure, provided that title remains vested in the
   65  association or corporation and any rents collected are applied
   66  to assessments that are then due; or
   67         (b)Collects rents from tenants in a parcel or unit
   68  pursuant to s. 718.116(11), s. 719.108(10), or s. 720.3085(8).
   69         Section 3. Present subsections (1), (2), and (3) of section
   70  702.036, Florida Statutes, are redesignated as subsections (2),
   71  (3), and (4), respectively, a new subsection (1) and subsection
   72  (5) are added to that section, and paragraph (a) of present
   73  subsection (1) and present subsection (2) of that section are
   74  amended, to read:
   75         702.036 Finality of mortgage foreclosure judgment.—
   76         (1)As used in this section, the term “property” means real
   77  property.
   78         (2)(a)(1)(a) In any action or proceeding in which a party
   79  seeks to set aside, invalidate, or challenge the validity of a
   80  final judgment of foreclosure of a mortgage or other lien, or to
   81  establish or reestablish a lien or encumbrance on the property
   82  in abrogation of the final judgment of foreclosure of a mortgage
   83  or other lien, the court shall treat such request solely as a
   84  claim for monetary damages and may not grant relief that
   85  adversely affects the quality or character of the title to the
   86  property, if:
   87         1. The party seeking relief from the final judgment of
   88  foreclosure of the mortgage or lien was properly served in the
   89  foreclosure lawsuit as provided in chapter 48 or chapter 49.
   90         2. The final judgment of foreclosure of the mortgage or
   91  lien was entered as to the property.
   92         3. All applicable appeals periods have run as to the final
   93  judgment of foreclosure of the mortgage or lien with no appeals
   94  having been taken or any appeals having been finally resolved.
   95         4. The property has been acquired for value, by a person
   96  not affiliated with the foreclosing mortgageholder, the
   97  foreclosing lienholder, lender or the foreclosed owner, at a
   98  time in which no lis pendens regarding the suit to set aside,
   99  invalidate, or challenge the foreclosure appears in the official
  100  records of the county where the property was located.
  101         (3)(2) For purposes of this section, the following, without
  102  limitation, shall be considered persons affiliated with the
  103  foreclosing lender mortgageholder or foreclosing lienholder:
  104         (a) The foreclosing mortgageholder, the foreclosing
  105  lienholder, lender or any loan servicer for the mortgage or lien
  106  loan being foreclosed;
  107         (b) Any past or present owner or holder of the mortgage or
  108  lien loan being foreclosed;
  109         (c) Any maintenance company, holding company, foreclosure
  110  services company, or law firm under contract to any entity
  111  listed in paragraph (a), paragraph (b), or this paragraph, with
  112  regard to the mortgage or lien loan being foreclosed; or
  113         (d) Any parent entity, subsidiary, or other person who
  114  directly, or indirectly through one or more intermediaries,
  115  controls or is controlled by, or is under common control with,
  116  any entity listed in paragraph (a), paragraph (b), or paragraph
  117  (c).
  118         (5)If a party seeks relief from a final judgment
  119  foreclosing a mortgage or lien, or files a separate action
  120  attacking such a final judgment, and the party claims that it
  121  holds or held a lien superior in right, priority, or dignity to
  122  the mortgage or lien foreclosed in the judgment, the court must
  123  award reasonable attorney fees to the party prevailing on the
  124  claim. This subsection applies whether the litigation seeking
  125  relief from the final judgment occurs in the case in which the
  126  judgment was entered or in any separate case or proceeding.
  127         Section 4. Subsection (2) of section 702.10, Florida
  128  Statutes, is amended to read:
  129         702.10 Order to show cause; entry of final judgment of
  130  foreclosure; payment during foreclosure.—
  131         (2) Except as provided in paragraph (i), in any action for
  132  foreclosure, other than owner-occupied residential real estate,
  133  in addition to any other relief that the court may award, the
  134  plaintiff may request that the court enter an order directing
  135  the mortgagor defendant to show cause why an order to make
  136  payments during the pendency of the foreclosure proceedings or
  137  an order to vacate the premises should not be entered.
  138         (a) The order shall:
  139         1. Set the date and time for hearing on the order to show
  140  cause. However, the date for the hearing may not be set sooner
  141  than 20 days after the service of the order. If service is
  142  obtained by publication, the date for the hearing may not be set
  143  sooner than 30 days after the first publication.
  144         2. Direct the time within which service of the order to
  145  show cause and the complaint shall be made upon each defendant.
  146         3. State that a defendant has the right to file affidavits
  147  or other papers at the time of the hearing and may appear
  148  personally or by way of an attorney at the hearing.
  149         4. State that, if a defendant fails to appear at the
  150  hearing to show cause and fails to file defenses by a motion or
  151  by a verified or sworn answer, the defendant is deemed to have
  152  waived the right to a hearing and in such case the court may
  153  enter an order to make payment or vacate the premises.
  154         5. Require the movant to serve a copy of the order to show
  155  cause on the defendant in the following manner:
  156         a. If a defendant has been served with the complaint and
  157  original process, service of the order may be made in the manner
  158  provided in the Florida Rules of Civil Procedure.
  159         b. If a defendant has not been served with the complaint
  160  and original process, the order to show cause, together with the
  161  summons and a copy of the complaint, shall be served on the
  162  defendant in the same manner as provided by law for original
  163  process.
  164         (b) The right of a defendant to be heard at the hearing to
  165  show cause is waived if the defendant, after being served as
  166  provided by law with an order to show cause, engages in conduct
  167  that clearly shows that the defendant has relinquished the right
  168  to be heard on that order. A defendant’s failure to file
  169  defenses by a motion or by a sworn or verified answer or to
  170  appear at the hearing duly scheduled on the order to show cause
  171  presumptively constitutes conduct that clearly shows that the
  172  defendant has relinquished the right to be heard.
  173         (c) If the court finds that a defendant has waived the
  174  right to be heard as provided in paragraph (b), the court may
  175  promptly enter an order requiring payment in the amount provided
  176  in paragraph (f) or an order to vacate.
  177         (d) If the court finds that the mortgagor has not waived
  178  the right to be heard on the order to show cause, the court
  179  shall, at the hearing on the order to show cause, consider the
  180  affidavits and other showings made by the parties appearing and
  181  make a determination of the probable validity of the underlying
  182  claim alleged against the mortgagor and the mortgagor’s
  183  defenses. If the court determines that the plaintiff is likely
  184  to prevail in the foreclosure action, the court shall enter an
  185  order requiring the mortgagor to make the payment described in
  186  paragraph (e) to the plaintiff and provide for a remedy as
  187  described in paragraph (f). However, the order shall be stayed
  188  pending final adjudication of the claims of the parties if the
  189  mortgagor files with the court a written undertaking executed by
  190  a surety approved by the court in an amount equal to the unpaid
  191  balance of the lien being foreclosed, including all principal,
  192  interest, unpaid taxes, and insurance premiums paid by the
  193  plaintiff.
  194         (e) If the court enters an order requiring the mortgagor to
  195  make payments to the plaintiff, payments shall be payable at
  196  such intervals and in such amounts provided for in the mortgage
  197  instrument before acceleration or maturity. The obligation to
  198  make payments pursuant to any order entered under this
  199  subsection shall commence from the date of the motion filed
  200  under this section. The order shall be served upon the mortgagor
  201  no later than 20 days before the date specified for the first
  202  payment. The order may permit, but may not require, the
  203  plaintiff to take all appropriate steps to secure the premises
  204  during the pendency of the foreclosure action.
  205         (f) If the court enters an order requiring payments, the
  206  order shall also provide that the plaintiff is entitled to
  207  possession of the premises upon the failure of the mortgagor to
  208  make the payment required in the order unless at the hearing on
  209  the order to show cause the court finds good cause to order some
  210  other method of enforcement of its order.
  211         (g) All amounts paid pursuant to this section shall be
  212  credited against the mortgage obligation in accordance with the
  213  terms of the loan documents; however, payments made under this
  214  section do not constitute a cure of any default or a waiver or
  215  any other defense to the mortgage foreclosure action.
  216         (h) Upon the filing of an affidavit with the clerk that the
  217  premises have not been vacated pursuant to the court order, the
  218  clerk shall issue to the sheriff a writ for possession which
  219  shall be governed by s. 83.62.
  220         (i) This subsection does not apply to foreclosure of an
  221  owner-occupied residence. For purposes of this paragraph, there
  222  is a rebuttable presumption that a residential property for
  223  which a homestead exemption for taxation was granted according
  224  to the certified rolls of the latest assessment by the county
  225  property appraiser, before the filing of the foreclosure action,
  226  is an owner-occupied residential property.
  227         (j)For purposes of this subsection, the term “mortgagor”
  228  means a person who grants a mortgage or a successor in ownership
  229  of the real property described in the mortgage. The term does
  230  not include a
  232  ================= T I T L E  A M E N D M E N T ================
  233  And the title is amended as follows:
  234         Delete lines 16 - 17
  235  and insert:
  236         702.10, F.S.; making conforming