Florida Senate - 2012                          SENATOR AMENDMENT
       Bill No. CS for SB 670
       
       
       
       
       
       
                                Barcode 806394                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                                       .                                
                                       .                                
                                       .                                
                                       .                                
                                       .                                
       —————————————————————————————————————————————————————————————————




       —————————————————————————————————————————————————————————————————
       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.