Florida Senate - 2023                                     SB 286
       
       
        
       By Senator Powell
       
       
       
       
       
       24-00376-23                                            2023286__
    1                        A bill to be entitled                      
    2         An act relating to legal instruments; amending s.
    3         117.201, F.S.; defining the term “witness”; amending
    4         s. 697.07, F.S.; defining the terms “mortgagee” and
    5         “mortgagor”; requiring that a lien created by an
    6         assignment of rents be perfected against a mortgagor
    7         in addition to third parties under certain conditions;
    8         making technical changes; revising the types of
    9         expenses that may be paid by collected rents in
   10         foreclosure actions under certain circumstances;
   11         providing applicability; amending s. 702.036, F.S.;
   12         defining the term “property”; expanding the scope of a
   13         final judgment of foreclosure to include other liens;
   14         requiring the award of attorney fees in certain
   15         circumstances; providing applicability; amending s.
   16         702.10, F.S.; revising the class of persons authorized
   17         to move for expedited foreclosure; making conforming
   18         changes; defining the term “mortgagor”; providing for
   19         retroactive applicability of a specified provision;
   20         providing an effective date.
   21          
   22  Be It Enacted by the Legislature of the State of Florida:
   23  
   24         Section 1. Subsection (16) is added to section 117.201,
   25  Florida Statutes, to read:
   26         117.201 Definitions.—As used in this part, the term:
   27         (16)“Witness,” when used as a noun, means an individual
   28  whose electronic signature is affixed to an electronic record as
   29  an attesting or subscribing witness.
   30         Section 2. Present subsections (1) through (8) of section
   31  697.07, Florida Statutes, are redesignated as subsections (2)
   32  through (9), respectively, present subsections (2), (3), and (4)
   33  of that section are amended, and a new subsection (1) and
   34  subsection (10) are added to that section, to read:
   35         697.07 Assignment of rents.—
   36         (1)For purposes of this section, the term:
   37         (a)“Mortgagee” means any party entitled to enforce the
   38  mortgage or assignment of rents instrument under applicable law.
   39         (b)“Mortgagor” means the original mortgagor and all
   40  parties who have subsequently acquired title to the property
   41  subject to the assignment.
   42         (3)(2) If such an assignment is made, the mortgagee shall
   43  hold a lien on the rents, and the lien created by the assignment
   44  shall be perfected and effective against the mortgagor and third
   45  parties upon recordation of the mortgage or separate instrument
   46  in the public records of the county in which the real property
   47  is located, according to law.
   48         (4)(3) Unless otherwise agreed to in writing by the
   49  mortgagee and mortgagor, the lien created by the assignment of
   50  rents is shall be enforceable upon the mortgagor’s default and
   51  written demand for the rents made by the mortgagee to the
   52  mortgagor, whereupon the mortgagor shall turn over all rents in
   53  the possession or control of the mortgagor at the time of the
   54  written demand or collected thereafter (the “collected rents”)
   55  to the mortgagee less payment of any expenses authorized by the
   56  mortgagee in writing.
   57         (5)(4) Upon application by the mortgagee or mortgagor, in a
   58  foreclosure action, and notwithstanding any asserted defenses or
   59  counterclaims of the mortgagor, a court of competent
   60  jurisdiction, pending final adjudication of any action, may
   61  require the mortgagor to deposit the collected rents into the
   62  registry of the court, or in such other depository as the court
   63  may designate. However, the court may authorize the use of the
   64  collected rents, before deposit into the registry of the court
   65  or other depository, to:
   66         (a) Pay the reasonable expenses solely to protect,
   67  preserve, and operate the real property, including, without
   68  limitation, real estate taxes, and insurance, and assessments
   69  that become due after the entry of the court’s order to a
   70  homeowners’ association or an association, as those terms are
   71  defined in s. 720.301, or a corporation regulated under chapter
   72  718 or chapter 719;
   73         (b) Escrow sums required by the mortgagee or separate
   74  assignment of rents instrument; and
   75         (c) Make payments to the mortgagee.
   76  
   77  The court shall require the mortgagor to account to the court
   78  and the mortgagee for the receipt and use of the collected rents
   79  and may also impose other conditions on the mortgagor’s use of
   80  the collected rents.
   81         (10)This section does not apply to a corporation that is a
   82  homeowners’ association or an association, as those terms are
   83  defined in s. 720.301, or a corporation regulated under chapter
   84  718 or chapter 719, that:
   85         (a)Acquires title to a parcel or unit through the
   86  foreclosure of its claim of lien, or a deed in lieu of
   87  foreclosure, provided that title remains vested in the
   88  association or corporation and any rents collected are applied
   89  to assessments that are then due; or
   90         (b)Collects rents from tenants in a parcel or unit
   91  pursuant to s. 718.116(11), s. 719.108(10), or s. 720.3085(8).
   92         Section 3. Present subsections (1), (2), and (3) of section
   93  702.036, Florida Statutes, are redesignated as subsections (2),
   94  (3), and (4), respectively, a new subsection (1) and subsection
   95  (5) are added to that section, and paragraph (a) of present
   96  subsection (1) and present subsection (2) of that section are
   97  amended, to read:
   98         702.036 Finality of mortgage foreclosure judgment.—
   99         (1)As used in this section, the term “property” means real
  100  property.
  101         (2)(a)(1)(a) In any action or proceeding in which a party
  102  seeks to set aside, invalidate, or challenge the validity of a
  103  final judgment of foreclosure of a mortgage or other lien, or to
  104  establish or reestablish a lien or encumbrance on the property
  105  in abrogation of the final judgment of foreclosure of a mortgage
  106  or other lien, the court shall treat such request solely as a
  107  claim for monetary damages and may not grant relief that
  108  adversely affects the quality or character of the title to the
  109  property, if:
  110         1. The party seeking relief from the final judgment of
  111  foreclosure of the mortgage or lien was properly served in the
  112  foreclosure lawsuit as provided in chapter 48 or chapter 49.
  113         2. The final judgment of foreclosure of the mortgage or
  114  lien was entered as to the property.
  115         3. All applicable appeals periods have run as to the final
  116  judgment of foreclosure of the mortgage or lien with no appeals
  117  having been taken or any appeals having been finally resolved.
  118         4. The property has been acquired for value, by a person
  119  not affiliated with the foreclosing mortgageholder, the
  120  foreclosing lienholder, lender or the foreclosed owner, at a
  121  time in which no lis pendens regarding the suit to set aside,
  122  invalidate, or challenge the foreclosure appears in the official
  123  records of the county where the property was located.
  124         (3)(2) For purposes of this section, the following, without
  125  limitation, shall be considered persons affiliated with the
  126  foreclosing lender:
  127         (a) The foreclosing mortgageholder, the foreclosing
  128  lienholder, lender or any loan servicer for the mortgage or lien
  129  loan being foreclosed;
  130         (b) Any past or present owner or holder of the mortgage or
  131  lien loan being foreclosed;
  132         (c) Any maintenance company, holding company, foreclosure
  133  services company, or law firm under contract to any entity
  134  listed in paragraph (a), paragraph (b), or this paragraph, with
  135  regard to the mortgage or lien loan being foreclosed; or
  136         (d) Any parent entity, subsidiary, or other person who
  137  directly, or indirectly through one or more intermediaries,
  138  controls or is controlled by, or is under common control with,
  139  any entity listed in paragraph (a), paragraph (b), or paragraph
  140  (c).
  141         (5)If a party seeks relief from a final judgment
  142  foreclosing a mortgage or lien, or files a separate action
  143  attacking such a final judgment, and the party claims that it
  144  holds or held a lien superior in right, priority, or dignity to
  145  the mortgage or lien foreclosed in the judgment, the court must
  146  award reasonable attorney fees to the party prevailing on the
  147  claim. This subsection applies whether the litigation seeking
  148  relief from the final judgment occurs in the case in which the
  149  judgment was entered or in any separate case or proceeding.
  150         Section 4. Subsection (2) of section 702.10, Florida
  151  Statutes, is amended to read:
  152         702.10 Order to show cause; entry of final judgment of
  153  foreclosure; payment during foreclosure.—
  154         (2) Except as provided in paragraph (i), in any action for
  155  foreclosure, other than owner-occupied residential real estate,
  156  in addition to any other relief that the court may award, the
  157  plaintiff may request that the court enter an order directing
  158  the mortgagor defendant to show cause why an order to make
  159  payments during the pendency of the foreclosure proceedings or
  160  an order to vacate the premises should not be entered.
  161         (a) The order shall:
  162         1. Set the date and time for hearing on the order to show
  163  cause. However, the date for the hearing may not be set sooner
  164  than 20 days after the service of the order. If service is
  165  obtained by publication, the date for the hearing may not be set
  166  sooner than 30 days after the first publication.
  167         2. Direct the time within which service of the order to
  168  show cause and the complaint shall be made upon the mortgagor
  169  each defendant.
  170         3. State that the mortgagor a defendant has the right to
  171  file affidavits or other papers at the time of the hearing and
  172  may appear personally or by way of an attorney at the hearing.
  173         4. State that, if the mortgagor a defendant fails to appear
  174  at the hearing to show cause and fails to file defenses by a
  175  motion or by a verified or sworn answer, the mortgagor defendant
  176  is deemed to have waived the right to a hearing and in such case
  177  the court may enter an order to make payment or vacate the
  178  premises.
  179         5. Require the movant to serve a copy of the order to show
  180  cause on the mortgagor defendant in the following manner:
  181         a. If the mortgagor a defendant has been served with the
  182  complaint and original process, service of the order may be made
  183  in the manner provided in the Florida Rules of Civil Procedure.
  184         b. If the mortgagor a defendant has not been served with
  185  the complaint and original process, the order to show cause,
  186  together with the summons and a copy of the complaint, shall be
  187  served on the mortgagor defendant in the same manner as provided
  188  by law for original process.
  189         (b) The right of the mortgagor a defendant to be heard at
  190  the hearing to show cause is waived if the mortgagor defendant,
  191  after being served as provided by law with an order to show
  192  cause, engages in conduct that clearly shows that the mortgagor
  193  defendant has relinquished the right to be heard on that order.
  194  The mortgagor’s A defendant’s failure to file defenses by a
  195  motion or by a sworn or verified answer or to appear at the
  196  hearing duly scheduled on the order to show cause presumptively
  197  constitutes conduct that clearly shows that the mortgagor
  198  defendant has relinquished the right to be heard.
  199         (c) If the court finds that the mortgagor a defendant has
  200  waived the right to be heard as provided in paragraph (b), the
  201  court may promptly enter an order requiring payment in the
  202  amount provided in paragraph (f) or an order to vacate.
  203         (d) If the court finds that the mortgagor has not waived
  204  the right to be heard on the order to show cause, the court
  205  shall, at the hearing on the order to show cause, consider the
  206  affidavits and other showings made by the parties appearing and
  207  make a determination of the probable validity of the underlying
  208  claim alleged against the mortgagor and the mortgagor’s
  209  defenses. If the court determines that the plaintiff is likely
  210  to prevail in the foreclosure action, the court shall enter an
  211  order requiring the mortgagor to make the payment described in
  212  paragraph (e) to the plaintiff and provide for a remedy as
  213  described in paragraph (f). However, the order shall be stayed
  214  pending final adjudication of the claims of the parties if the
  215  mortgagor files with the court a written undertaking executed by
  216  a surety approved by the court in an amount equal to the unpaid
  217  balance of the lien being foreclosed, including all principal,
  218  interest, unpaid taxes, and insurance premiums paid by the
  219  plaintiff.
  220         (e) If the court enters an order requiring the mortgagor to
  221  make payments to the plaintiff, payments shall be payable at
  222  such intervals and in such amounts provided for in the mortgage
  223  instrument before acceleration or maturity. The obligation to
  224  make payments pursuant to any order entered under this
  225  subsection shall commence from the date of the motion filed
  226  under this section. The order shall be served upon the mortgagor
  227  no later than 20 days before the date specified for the first
  228  payment. The order may permit, but may not require, the
  229  plaintiff to take all appropriate steps to secure the premises
  230  during the pendency of the foreclosure action.
  231         (f) If the court enters an order requiring payments, the
  232  order shall also provide that the plaintiff is entitled to
  233  possession of the premises upon the failure of the mortgagor to
  234  make the payment required in the order unless at the hearing on
  235  the order to show cause the court finds good cause to order some
  236  other method of enforcement of its order.
  237         (g) All amounts paid pursuant to this section shall be
  238  credited against the mortgage obligation in accordance with the
  239  terms of the loan documents; however, payments made under this
  240  section do not constitute a cure of any default or a waiver or
  241  any other defense to the mortgage foreclosure action.
  242         (h) Upon the filing of an affidavit with the clerk that the
  243  premises have not been vacated pursuant to the court order, the
  244  clerk shall issue to the sheriff a writ for possession which
  245  shall be governed by s. 83.62.
  246         (i) This subsection does not apply to foreclosure of an
  247  owner-occupied residence. For purposes of this paragraph, there
  248  is a rebuttable presumption that a residential property for
  249  which a homestead exemption for taxation was granted according
  250  to the certified rolls of the latest assessment by the county
  251  property appraiser, before the filing of the foreclosure action,
  252  is an owner-occupied residential property.
  253         (j)For purposes of this subsection, the term “mortgagor”
  254  means the original mortgagor and any subsequent owner or party
  255  in possession of the property. The term does not include a
  256  homeowners’ association or an association, as those terms are
  257  defined in s. 720.301, or a corporation regulated under chapter
  258  718 or chapter 719, that:
  259         1.Acquires title to a parcel or unit through the
  260  foreclosure of its claim of lien, or a deed in lieu of
  261  foreclosure, provided that title remains vested in the
  262  association or corporation and any rents collected are applied
  263  to assessments that are then due; or
  264         2.Collects rents from the tenants in the parcel or unit
  265  pursuant to s. 718.116(11), s. 719.108(10), or s. 720.3085(8).
  266         Section 5. The amendment to s. 117.201, Florida Statutes,
  267  made by this act is intended to clarify existing law and applies
  268  retroactively to January 1, 2020.
  269         Section 6. This act shall take effect July 1, 2023.